Bishop of Winchester's report
Monday 5th June
IN THE MATTER OF CANON C12(5) OF THE CANONS OF THE CHURCH OF ENGLAND
THE REVEREND RICHARD JOHN COEKIN Appellant
THE BISHOP OF SOUTHWARK Respondent
2 The Bishop’s power of summary revocation (originally part of Section 98 of the Pluralities Act 1838), was included as Canon C12(5) in the revised Canons Ecclesiastical promulged between 1964 and 1969. The text which is relevant to this appeal is as follows:
“The bishop of a diocese may by notice in writing revoke summarily, and without further process, any licence granted to any minister within
his diocese for any cause which appears to him to be good and reasonable after having given the minister sufficient opportunity of showing reason to the contrary; and the notice shall notify the minister that he may, within 28 days from the date on which he receives the notice, appeal to the archbishop of the province in which that diocese is situation.”
3 Paragraph 5 has subsequently been modified by Amending Canon No 24 to exclude from its ambit misconduct in respect of which disciplinary proceedings may be instituted under the Clergy Discipline Measure 2003. Although the Measure itself, containing a parallel provision in Section 8(2) came into force on January 1st 2006, the Amending Canon became operative on November 16th 2005, little more than a week after the revocation of the Appellant’s licence. The fortuitous proximity between these two dates has no direct bearing upon the appeal, because the Bishop was bound to apply the law as it stood at the time of the commencement of the revocation process.
4 The Appellant’s right of appeal, enshrined in Canon 12(5), was triggered by the revocation of his licence. As well as establishing the right of appeal, the Canon provides, in outline, for the procedure to be followed in connection with it:-
“On such an appeal the archbishop may either hear the appeal himself or appoint a person holding the office of diocesan bishop or suffragan
bishop in his province (otherwise than in the diocese concerned) to hear the appeal in his place; and , after hearing the appeal or, if he has appointed a bishop to hear the appeal in his place, after receiving a report in writing from that bishop, the archbishop may confirm, vary or cancel the revocation of the licence as he considers just and proper; and there shall be no appeal from the decision of the archbishop”.
5 The Appellant’s notice of appeal was received soon after November 18th 2005. By a written instrument dated November 30th 2005 I was appointed as Commissary to hear the appeal, and to report in accordance with Canon C12(5). Mr Timothy Briden, Vicar-General of the Province of Canterbury, was appointed to act as my Legal Assessor. I have also been assisted, particularly in relation to interlocutory matters, by the Provincial Registrar, Canon John Rees.
6 The appeal process contemplated by Canon C12(5)
has been supplemented by procedural rules approved by the Archbishops
of Canterbury and York.
They are usually known as the Elphinstone Rules. Rule 2 required the
Appellant to serve an original pleading, to which the Bishop filed an
answer. These pleadings were of substantial length; the Appellant’s
Statement of Case contained 54 paragraphs, a number exceeded by the 72
paragraphs in the Bishop’s Response. In addition, the Appellant
served a Reply running to a further 32 paragraphs.
“it is clear beyond question that when offences are proved it is no defence to allege that the offence was caused by a conscientious objection to the performance of statutory duties or other lawful requirements”
A similar approach should be adopted to appeals under Canon C12(5) whether or not the “good and reasonable cause” for revocation amounts to an ecclesiastical offence.
8 On the Respondent Bishop’s side, matters were pleaded relating to the Appellant’s evangelistic work in relation to church planting, which was said to have involved breaches of Canon Law. No mention, however, was made of this complaint during the revocation process itself. A minister defending himself within the Canon C12(5) procedure is entitled to know from the outset the case which has to meet. For obvious reasons of fairness it is therefore not normally open to a bishop to rely at the appeal stage upon fresh allegations which the minister had no opportunity to answer before the summary revocation of the licence.
9 I therefore decided that the collateral issues which featured in the pleadings should be excluded from the appeal hearing. Instead the parties were required to concentrate upon the following salient questions:
(i) Did the process undertaken by the Respondent comply with the requirements
of Canon C12(5)?
(iii) If so, did the Respondent act appropriately in revoking the Appellant’s licence?
These questions, in some slightly different grammatical form, were included
in the Directions of March 30th 2006 issued to the parties by the Provincial
Registrar. Both the Appellant and the Respondent have subsequently exercised
restraint in avoiding those topics which I had ruled to be irrelevant.
10 The appeal was with the consent of both parties heard in public. The hearing took place over two days commencing on May 2nd 2005. I am grateful to the Guild Vicar and the churchwardens of St Dunstan-in-the-West for making available the church for the hearing and for tolerating the resultant interruption of their usual activities.
11 The Appellant was represented by Mr Stephen Hofmeyr QC assisted by Dr James Behrens and Mr Andrew Wales. Mr Nigel Seed QC appeared for the Respondent. Each side put in written submissions, which formed the basis of the oral arguments of Counsel. The Appellant was the only witness to give oral evidence, being cross-examined by Mr Seed QC. The Appellant’s solicitor lodged a bundle including 13 additional witness statements which, although not agreed as evidence, were unchallenged by Mr Seed QC and by consent were adduced in written form. The Respondent called no evidence. There was no serious dispute, apart from matters of interpretation and emphasis, about the sequence of events leading up to the revocation of the Appellant’s licence.
12 In the following paragraphs I set out my findings of fact, inserting within the chronological sequence the necessary extracts from the correspondence exchanged between the parties.
13 Although the Appellant was formally licensed to the proprietary Chapel of Emmanuel, Wimbledon, his primary role was in the development of a church planting venture based at Dundonald School in the parish of St Andrew’s Wimbledon. The venture flourished. Under a deed dated November 21st 2002 Dundonald Church was established as a charitable trust with the Appellant being named as the minister. Schedule 3 of the deed contained a provision that
“Ideally, the Minister for the time being should be ordained into the Church of England and licensed by an appropriate bishop thereof”.
14 As Mr Seed QC rightly observed, Schedule 3 contains the only reference to the Church of England in the entire trust deed. Dundonald Church is an unincorporated association of persons operating under the trust deed outside the parochial structure of the Church of England. Its meetings take place in various locations in London including the unconsecrated Dundonald School. It pays no parish share to the Diocese of Southwark. Despite its tenuous connection with the diocese, Dundonald Church has, however, sought to maintain an essentially Anglican ethos. The Appellant’s own position, as a minister licensed to Emmanuel, Wimbledon, yet primarily serving Dundonald Church became ambiguous. The point was addressed in the Respondent’s letter of July 25th 2003 to the Appellant, where he observed:
“This obviously raises the question whether or not you should
continue licensed ministry in the Diocese of Southwark and the form that
any licence might then take”.
15 The Appellant was assisted at Dundonald Church by Mr Richard Perkins and Mr Andrew Fenton, neither of whom had been ordained although both had attended theological college and desired ordination. From December 2003 onwards the Appellant repeatedly pressed the Respondent to ordain these two laymen. In the absence of a positive response, the Appellant obtained an offer from Bishop Martin Morrison, of the Church of England in South Africa (“C.E.S.A.”) to ordain Mr Perkins and Mr Fenton as deacons into that church during one of Bishop Morrison’s visits to this country. The offer prompted the Appellant to write to the Respondent on March 14th 2005 in these terms:
“As regards the ordination of Richard Perkins and Andrew Fenton, do you think that they might be ordained in the near future or shall I pursue a valid but irregular ordination of them?”.
In his evidence the Appellant said that he had wondered
whether the Respondent was having difficulties with his quota of ordained
and whether a valid but irregular ordination might have been a “good
solution”. I am satisfied that when it was first raised in this
way the proposal was not a deliberately hostile one, nor was it intended
to encroach upon the Respondent’s jurisdiction; seemingly the Respondent
was disturbed by it, but he wrote to the Appellant on August 1st 2005
with a suggestion of his own. He informed the Appellant that an acting
Diocesan Director of Ordinands was being appointed, and continued :
Regrettably the Respondent’s initiative was overtaken by other events.
16 The Civil Partnership Act 2004 came into force on December 5th 2005. Before that date its implications had been considered by the House of Bishops who issued a Pastoral Statement giving practical guidance to bishops and clergy. The Respondent circulated a copy of the Pastoral Statement under cover of a letter dated July 26th 2005 in which he wrote:
“The statement is self-explanatory and I would ask you to read it carefully. In my Judgement it represents no change in the House’s position on such issues”.
The Appellant, who had previously written to the Respondent seeking his affirmation of “orthodox biblical teaching” on sexual issues, sent a letter dated September 16th 2005 inviting the Respondent to distance himself publicly from the House of Bishops’ Statement and to make the affirmation previously sought. The letter included this passage:
“We very much hope that you will now be able to make these affirmations (since claiming allegiance to “Issues” does not clarify your attitude to the Pastoral Statement) and that we will thereafter be able to welcome your ministry with renewed enthusiasm. However we feel it is only fair to explain that if you are unable to give us these assurances we will unhappily be forced to the conclusion that you are failing in your duty as a Bishop to uphold the sound doctrine of the Scriptures on this issue and drive away erroneous doctrines. The only recourse then available to us will be to declare ourselves in “Impaired Communion” with you and your ministry will no longer be welcome among us (and we shall have to seek alternative episcopal ministry from the wider Anglican Church for the assessment of our candidates for training, the ordination of our eligible ordinands and the oversight of our ordained staff)”.
Thus the Appellant put himself on a collision course with his diocesan bishop. Mr Hofmeyr QC said on the Appellant’s behalf that he was simply conveying the views of his congregation to the Respondent. Although there is some truth in that submission, the letter and the correspondence which followed were the responsibility of the Appellant, who as minister of Dundonald Church fully associated himself with the stance being adopted.
17 The Respondent’s reply was dated October 12th 2005. In it he declined to distance himself from the House of Bishops’ Statement, or to make the affirmation sought. As regards the possibility of ordination by another bishop, the Respondent drew attention to the requirements of the Overseas and Other Clergy (Ministry and Ordination) Measure 1967, adding:
“Wilfully to ignore these provisions could lead to serious consequences”.
“As you will know from my letters and conversations in the past, our pressing need is for the ordination of our eligible staff who are each running thriving planted congregations (each in parishes where permission has been given). It is only fair to let you know that we shall now need to proceed with their ordination by a visiting Anglican bishop. You were angry with me when I asked about the possibility previously and we had hoped that you would do more than simply refer this matter for consideration by your new assistant DDO. Now that the Statement impairs our relationship we shall have to pursue a valid but irregular ordination to the diaconate. This presents the further issue of their ordination to the presbyterate in due course”.
Mr Seed QC was critical of the Appellant’s failure, in this letter and elsewhere, to provide the Respondent with full details of the impending ordination. The Appellant’s motivation, Mr Seed QC suggested, was to ensure that that Respondent had insufficient information to enable an injunction to be sought. I am satisfied, both from the tenor of the Appellant’s lengthy letters and from his own evidence, that uppermost in his mind was the dilemma (as he perceived it) arising from the House of Bishops’ Statement. The Appellant also told me of his concern that advance publicity about the ordination service might have made it an unwelcome focus for protest groups and the press. In my view the Appellant was not playing a game of cat and mouse with the Respondent; still less was he (in the words of Mr Seed QC) being deceitful or creating a deliberately false impression.
18 The Respondent’s reaction was evident from his letter of October 28th 2005, which was plainly intended to set in motion the Canon C12(5) revocation procedure. It is necessary to set out the body of this letter in full :
“In the light of your letter dated 25th October 2005, in which you say that you are now “in temporary impaired communion” with me and shall no longer be able to accept my oversight, and where you further indicated that you intend to proceed with the ordination of your “eligible staff” by a visiting Anglican Bishop, I feel I have no option but to summarily revoke your licence.
Before doing so, I am required by Canon Law to give you an opportunity to show good cause why I should not do so. I invite you to do this within seven days of today’s date.
Alternatively, you may wish on grounds of conscience to surrender your licence to me, since you no longer accept my authority.
This letter does not itself constitute notice of termination of your licence. If and when you do receive such notice, you will have twenty-eight days from the date of receipt in which to appeal to the Archbishop of Canterbury.
I am very sorry to have to write in these terms”.
19 The ordination took place on November 2nd 2005 at Christ Church Surbiton Hill, a consecrated parish church in the Diocese of Southwark. Bishop Morrison presided at the service, in the course of which Mr Perkins, Mr Fenton and Mr Loots Lambrechts (who was working for the South African Evangelical Church in South London) were ordained deacon. The service had two notable features. One was that beforehand Mr Perkins and Mr Fenton in private both swore the Oaths of Allegiance and of Canonical Obedience to the Bishop of Southwark pursuant to Canons C13 and C14; each also made the Declaration of Assent. The other was that the printed Order of Service gave no hint that the ordination was in accordance with the rites of C.E.S.A., nor that the ordinands were being received as deacons into that Church. Nonetheless, there are in evidence statements from Bishop Morrison himself and from Bishop Francois Retief, Presiding Bishop of C.E.S.A confirming the validity of the ordination from their standpoint. The truth of these statements was not challenged by the Respondent. For the purposes only of this appeal I therefore accept that C.E.S.A. regards Mr Perkins, Mr Fenton and Mr Lambrechts as being duly ordained within the C.E.S.A. diaconate. The legal consequences of this ordination, so far as they concern the Church of England, are considered at paragraph 31 of my Report.
20 The Appellant was present at the ordination service but took no other part in it. His proved involvement was limited to his original discussion with Bishop Morrison early in 2005 about the possibility of a C.E.S.A. ordination; his support for Mr Perkins and Mr Fenton as they prepared themselves for ordination; and his making of the necessary administrative arrangements. This included obtaining the consent of the incumbent of Christ Church, the Reverend Graham Wintle, to the use of the building for the service.
21 The Respondent was notified by the Appellant himself that the ordination had taken place. The news was given in the first paragraph of the letter of November 3rd 2005 in which the Appellant sought to show cause why his licence should not be revoked. This elaborate exercise in self-justification failed to impress the Respondent. It also failed to deploy in an effective way the arguments which stood in the Appellant’s favour. The next step taken by the Respondent was to revoke the Appellant’s licence. The revocation letter of November 7th 2005 contained the following passage:
“Your letters make it quite clear that you no longer accept my episcopal authority and you have acted, erroneously, as though you did not require the licence or authority of a Church of England bishop. In these circumstances I have no option but to summarily revoke your licence as Assistant Minister of the Proprietary Chapel of Emmanuel Wimbledon. If you wish, I believe that you have twenty-eight days from the receipt of this letter to appeal to the Archbishop of Canterbury.
In my letter of October 12th I alerted you to The “Overseas and Other Clergy (Ministry and Ordination) Measure 1967” which states that bishops ordained overseas may only perform episcopal duties in a Church of England Diocese by commission in writing of the diocesan bishop and with the consent and licence of the Archbishop of Canterbury. There may, therefore, be further consequences to the action of November 2nd.
In the meantime neither Andy Fenton, Richard Perkins nor Loots Lambrechts have any legal authority to claim to exercise ordained ministry in the Church of England in the Diocese of Southwark. I must make this publicly known together with the fact that I have revoked your licence”.
Before this letter was sent the Diocesan Registrar had sought clarification from Mr Wintle as to the form of service used at the ordination. His step may have been prompted by the Appellant’s reference in the letter of November 3rd 2005 to the performance of the ordination by a C.E.S.A. bishop. Mr Wintle did not attend the service and was unable to assist the Registrar, with the consequence that the Respondent did not see the Order of Service until after the revocation of the Appellant’s licence.
22 The Respondent took the opportunity to explain his position in a letter of November 8th 2005 addressed to the Clergy in the Diocese of Southwark, and ten days later in his published Address to the Diocesan Synod. In the circular letter the Respondent commented adversely on unauthorised church planting and continued:
“For this reason, we were not prepared to support the selection and training of further ordination candidates from or for Dundonald unless future church plants followed our Diocesan Guidelines”.
(Reference is to the Guidelines first published on August 25th 2005, a copy of which, disclosed in the appeal proceedings, I have had the opportunity to read). The Diocesan Address included the following passage:
“Now the given reason for last week’s illegal ordination at Surbiton was my refusing to dissociate myself from the Statement on Civil Partnerships, but a sub theme, well picked over in the Church of England Newspaper was my alleged refusal to ordain two of the three men involved.
And I did so refuse, until the pattern of church planting emanating from Dundonald fell within the proper pattern of Christian neighbourliness well expressed in our recent guidelines”.
23 The Appellant gave due notice of his appeal on November 18th 2005, well within the 28 day period prescribed by Canon C12(5). The notice
document, written by the Appellant in person, ran to five closely typed
pages. The scene had been set for the appeal.
24 Mr Hofmeyr QC correctly submitted that the common law principles of natural justice, often summarised as the duty to act fairly, are applicable to Canon C12(5) cases. The principles in question are, first, that no person is to be a judge in his own cause; and secondly that no person is to be condemned unheard. They are enshrined respectively in the legal maxims nemo judex in causa sua and audi alteram partem. The second principle is reflected in the language of the Canon C12(5) itself, with its reference to “the opportunity of showing reason to the contrary”. Moreover, in Poole –v- Bishop of London (1859) Brodrick and Fremantle’s Privy Council Judgments 176 at 186 the report of Dr Lushington, the Assessor to the Archbishop of Canterbury, reveals a close adherence to the requirements of natural justice in the context of Section 98 of the Pluralities Act 1838. Recently guidance was given by the Archbishop of York in Brown –v- Bishop of Carlisle (2002; unreported) as to the practical application of the concept of procedural fairness to the function of the bishop under Canon C12(5). In the following paragraphs I shall consider to what extent the procedure adopted by the Respondent complied with the approach recommended in Brown’s case.
25 At paragraph 117 of the Judgment in Brown the Archbishop referred to
“The recognised principle that any person against whom allegations are being made in proceedings should have a list of the allegations which he has to meet”
“In any future Canon C12(5) proceedings a list of allegations must be drawn up by a responsible person and supplied to the minister”.
In the present proceedings the exchange of correspondence leading up to the Respondent’s letter of October 28th 2005 did not relieve him of the need to have drawn up an appropriate list of allegations, setting out in precise terms the acts or omissions complained of, and indicating whether they involved breaches of specified provisions of Canon Law or otherwise amounted to some good and reasonable cause for revocation. The letter itself fell short of this requirement. It did not spell out the case against the Appellant in terms of Section 4 of the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 or of Canon B43, both of which have been the subject of submissions on appeal. The Appellant’s rejection of episcopal “oversight” or “authority” was not characterised as a breach of the law. Nor, if the Respondent considered them to be a potential cause for revoking the licence, did the Appellant’s church planting activities feature in the letter. The Appellant was, in my view, prejudiced by the absence of properly formulated allegations, as is demonstrated by his failure in the written reply of November 3rd 2005 to address many of the points of substance which subsequently emerged.
26 The guidance given in Brown’s case contemplated that the minister should normally be given the opportunity to put his case orally to the bishop at a meeting between them. (See paragraph 126 of the Judgment). It was for the Respondent, who had control of the procedure, to offer a meeting, and not for the Appellant to request it. The failure to afford the Appellant the opportunity of an oral hearing amounted to procedural unfairness. Had the parties met face-to-face many of the misconceptions about episcopal authority, the status of the ordination and the Appellant’s involvement in it would have been capable of resolution. The Respondent, on hearing and testing the explanations given by the Appellant, might well have been persuaded to adopt a course short of revoking his licence.
27 The remaining aspect of procedural fairness relevant to the present appeal was identified in paragraph 119 of the Judgment in Brown. It concerns the need for a document setting out the reasons for the Bishop’s decision. The requirement was explained by the Archbishop of York in the following passage:
“The decision should be related to specific incidents, which should be described (both in the list of allegations and in the decision document) with sufficient particulars (of the date, place and nature of the incident) to enable a reader to see what has been decided. In any future case under this Canon the decision document must particularise the facts found proved”.
Although the language used by the Archbishop was directed to the fact-finding exercise which Brown’s case involved, the underlying requirement applies equally to cases involving issues of theology or law. I fully accept that the Respondent, as he stated, had given a good deal of thought to the Appellant’s letter of November 3rd 2005. His decision letter did not, however, do justice to the complexity of the issues before him. It contained no reasoned rejection of the Appellant’s arguments, neither did it record the Respondent’s findings of fact or law. The passing reference to the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 implied that the Respondent had not properly given his mind to the legal status of the C.E.S.A. ordination. No mention was made of Canon B43 despite its later appearance at paragraph h 55 of the Respondent’s pleaded case.
28 The brevity of the decision letter gives rise to further difficulty. It has been submitted by Mr Hofmeyr QC that the Respondent’s decision was flawed because he had taken into account the Appellant’s church planting as a reason for revoking the licence, notwithstanding the absence of any mention of church planting in the letters of October 28th and November 7th 2005. Some support for the submission is to be found in the references to church planting by Dundonald Church in the Respondent’s letter to the Clergy and his Diocesan Address (see paragraph 22 of the Report). Paragraph 45 of the pleaded Response of the Respondent avers that it appeared to the Respondent that he had good and reasonable cause for revocation, but then proceeds to aver that the Respondent “did have good and reasonable cause” for a list of nine reasons including four which related to church planting. Despite the explanation of Mr Seed QC that this part of his pleading was directed to two separate points, namely the actual reason for the revocation and other grounds which objectively might justify it, I am not convinced that the Respondent’s thought processes at the time of his decision-making were so subtle. The Respondent did not give evidence himself so I have no explanation from him. It is inappropriate for me to draw inferences from the evidence in favour of the Respondent when he has refrained from adducing evidence. (See Ross –v- Associated Portland Cement Manufacturers  1 WLR 768 at 775 per Lord Reid). In the event the uncertainties about the grounds for the Respondent’s decision serve to reinforce my conclusion that the letter of November 7th 2005 failed to meet the standards required of a proper decision document.
29 Mr Seed QC invited me to disregard any procedural irregularity because it was cured by the fairness of the appeal process. I am unable to accede to that argument. The deficiencies identified in this section of my Report are so serious, whether viewed individually or collectively, as to have a considerable bearing upon the outcome of the appeal itself. Mr Hofmeyr QC argued that the want of fair process called for the appeal to be allowed as of right. That also overstates the position. I shall be guided by paragraph 106 of the Judgment in Brown which requires the evidence and submissions taken on appeal to be considered in conjunction with matters of procedural fairness for the purposes of arriving at a conclusion.
The Merits of the Appeal
30 The written submissions of Mr Hofmeyr QC and Mr Seed QC contained various matters of law with which it has become unnecessary to deal in this Report. Notable among them are Mr Hofmeyr’s arguments about the scope of the duty of canonical obedience and about the extent to which a “good and reasonable cause” for revocation under Canon C12(5) might involve matters other than misconduct under Section 8 of the Clergy Discipline Measure 2003 or Section 14 (now in part repealed) of the Ecclesiastical Jurisdiction Measure 1963. I must not be taken to countenance any of the submissions made to me unless I have actually reached conclusions upon them in this Report.
31 My consideration of these merits must begin with Section 4 of the Overseas and Other Clergy (Ministry and Ordination) Measure 1967. It is in the following terms:
“(1) An overseas bishop or a bishop consecrated in a Church not in Communion with the Church of England whose Orders are recognised and accepted by the Church of England may, on the request and by the commission in writing of the bishop of a diocese in the province of Canterbury or York, and with the consent and licence in writing of the Archbishop of the province, ordain persons and perform other episcopal functions in that diocese.
(2) For the purpose of this Measure any person ordained priest or deacon by a bishop acting on such request and by such commission as aforesaid shall be deemed to have been ordained by the bishop making the request and issuing the commission and not by the bishop acting as aforesaid.
(3) If any overseas bishop performs any episcopal functions in a diocese in the province of Canterbury or York, otherwise than in accordance with this section, he shall be guilty of an offence against the laws ecclesiastical for which proceedings may be taken under the Ecclesiastical Jurisdiction Measure 1963”.
C.E.S.A. is not a Church in Communion with the Church of England. (See the list of Churches which comprise the Anglican Communion, as set out in the published Canons of the Church of England). The Orders of C.E.S.A. are, however, recognised and accepted by the Church of England with the result that Bishop Morrison, providing he had the necessary authority of the Archbishop and Diocesan Bishop in the form prescribed by Subsection (1), might have carried out an ordination within Section 4. It is common ground between the parties that Bishop Morrison had no such authority; hence the ordination of November 2nd 2005 was not covered by Section 4. It was, on this basis that the Respondent in his Address to the Diocesan Synod characterised the ordination as “illegal”. Mr Hofmeyr QC has argued that all this is beside the point because the ordination was (as I have found on the evidence before me) purely a C.E.S.A. ordination the effect of which was only to confer the orders of C.E.S.A. upon Mr Perkins, Mr Fenton and Mr Lambrechts. Section 4, he said, applied only to Church of England ordinations and had no relevance to the rites whereby candidates were ordained into the ministry of other churches. I have concluded that the analysis of Section 4 given by Mr Hofmeyr QC is correct, and that accordingly there was no breach of Section 4 in this instance.
32 Although it must follow that the Appellant cannot have been guilty of procuring a contravention of Section 4 of the 1967 Measure, the Respondent was entitled (as he did) to disapprove of the Appellant’s behaviour in connection with the ordination. In August 2005 the Respondent had opened the way to the eventual ordination of Mr Perkins and Mr Fenton by proposing a meeting with the acting Diocesan Director of Ordinands, which if satisfactory would have been followed by further action at Diocesan level. The C.E.S.A. ordination (as the Respondent rightly indicated) did not confer ministerial authority upon the ordinands for the purposes of the Church of England. Nonetheless, the ordination created the impression that the established procedures for the selection of ordinands were deliberately being circumvented. For this the Respondent was entitled to take the Appellant to task.
33 The ordination service, as described in the statements of the witnesses, did not accord with Canon B43(9), which is to this effect:
“The incumbent of a parish may, with the approval of the parochial church council and the bishop of the diocese, invite members of another Church to which this Canon applies to take part in joint worship with the Church of England or to use a church in the parish for worship in accordance with the forms of service and practice of that other Church on such occasions as may be specified in the approval given by the bishop”
A church to which the Canon applies is defined in paragraph 12 as “every Church to which the Church of England (Ecumenical Relations) Measure 1988 applies”. C.E.S.A. is not such a church. Accordingly, the use of Christ
Church, Surbiton Hill for the C.E.S.A. ordination service was incapable of being authorised under Canon B43(9), even if episcopal approval for such use had been forthcoming. Mr Hofmeyr QC sought valiantly to argue that, since Canon B43 was silent on the question of the services of a church to which the Canon did not apply, it was by implication lawful to conduct such services in an Anglican parish church. A reading of Canon B43 itself in conjunction with Canons B1 to B14A (which regulate Anglican forms of worship to be used in churches and cathedrals) and Canon F15 (concerning the use of churches for temporal purposes) demonstrates the contrary, that to be lawful an act of worship must come within the framework of the Canons or expressly be permitted by some other legal authority. Mr Seed QC was accurate in his submission that the use of a parish church for the acts of worship of religious bodies outside the scope of the Canons must normally be authorised by a faculty of the Consistory Court.
34 The Appellant did not participate (otherwise than by his mere presence) in the ordination service. Nevertheless, I am satisfied that by the part he played in arranging the service the Appellant bore some degree of responsibility for the resultant breach of Canon Law.
35 The Respondent’s stated reasons for revoking the licence included the Appellant’s apparent rejection of the Respondent’s “authority” and “oversight”, as well as the Appellant’s description of their relationship as being one of “temporary impaired communion”. I am not sure that the Appellant, when writing the deliberately challenging letters in which these phrases appeared, had really thought through their consequences in terms either of theology or law. Certainly the meaning which the Appellant has attached to them became progressively diluted in the course of the appeal proceedings.
36 It is understandable that the Respondent took grave exception to the content of the Appellant’s letters. Canon C18 firmly establishes the role of the diocesan bishop as the chief pastor and chief minister of his diocese, as well as the repository of the legal jurisdiction of the Ordinary. In the absence of some special and duly authorised arrangement (such as the Act of Synod associated with the Priests (Ordination of Women) Measure 1993) it is not open to clergy or laity to opt out of all or part of the diocesan bishop’s control. This principle cannot be circumvented by ambiguous or self-defining terminology of the kind adopted by the Appellant in his letters to the Respondent.
37 The appropriate response to the Appellant’s defiance was not, however, the summary revocation of his licence. By October 2005 the Appellant had held a licence in the Diocese of Southwark for almost 10 years. He was a dedicated and energetic minister. The contents of the offending letters, although circulated among the Appellant’s evangelical colleagues, had not reached the public domain. In a technical sense the Appellant had not been in breach of his duty of canonical obedience to the Respondent because the Respondent had not in terms directed him to perform or refrain from performing, some specified act. (Although the Respondent expressed his disapproval of the threatened ordination, he actually did no more than to warn of the “serious consequences” of contravening the provisions of the 1967 Measure. These consequences were never identified, but the Respondent’s letter of November 8th 2005 to the Diocesan Clergy shows that in his mind they extended beyond the Appellant personally). All these factors ought to have weighed in the Appellant’s favour. Even when the Appellant’s disregard for the Respondent’s responsibility for decisions about ordination and the Appellant’s complicity in a breach of Canon Law (considered in paragraphs 32 to 34 of the Report) are taken into account, summary revocation was a disproportionate outcome in the circumstances of the case.
38 My findings are that the procedure leading up to the Respondent’s decision under Canon C12(5) was seriously flawed (paragraph 29) and that summary revocation of the Appellant’s licence was inappropriate. Now it is my task, in the light of these conclusions, to recommend whether the revocation of the licence should be confirmed, varied or cancelled. Mr Seed QC submitted that no useful purpose would be served by restoring the licence given the Appellant’s limited involvement with Emmanuel, Wimbledon. I disagree. The value which the Appellant places on his licence is demonstrated by the very fact that he has chosen to pursue this appeal. The Vicar of Emmanuel, Wimbledon, the Reverend Jonathan Fletcher, has provided a statement from which it is clear that he continues to support the Appellant and to collaborate with him. The licence is also significant in terms of the Appellant’s standing within Dundonald Church, as Schedule 3 of its trust deed revealed. (See the extract quoted in paragraph 13 of the Report).
39 I am advised that one course open to me is to recommend that the revocation should be cancelled on terms that the Appellant gives written undertakings to the Respondent as to his future conduct. After giving careful consideration to all the submissions and evidence before me I have concluded that this is the outcome which would best meet the justice of the case.
40 The undertakings which the Appellant ought properly to give are:
(i) except under the authority of the Bishop of Southwark, to refrain
from any involvement in :
(ii) strictly to abide by all general or specific directions given by the Bishop of Southwark concerning church planting or mission initiatives
41 Although the following observations fall outside my remit as Commissary,
I find it necessary to comment upon the somewhat anomalous position of
Dundonald Church. Were the Trustees to devise means of forming a closer
relationship with the Diocese of Southwark, if necessary by seeking some
modification of the existing trust deed, it would be to the benefit of
all concerned. More specifically, such a programme would assist in repairing
the relationship of its members (including the Appellant himself) with
the Bishop of Southwark, which recent events have placed under strain.
42 Accordingly I respectfully advise His Grace the Archbishop of Canterbury that the appeal should be allowed and that the revocation of the Appellant’s licence should be cancelled upon the Appellant delivering to the Bishop of Southwark and to the Registrar of the Province of Canterbury the written undertakings set out at paragraph 40 of my Report.
2 June 2006
© Lambeth Palace 2006