Stephen Trott reviews the new Churchwardens’ Measure

CANON LAW can be very dull stuff, and it is not recommended as bed time reading, except perhaps for the specialist. But it is the fruit of many centuries of accumulated wisdom and experience, and ought not to be disregarded. Quite the contrary: it is well worth careful study. There is even a thriving Ecclesiastical Law Society which promotes knowledge of Canon Law and other forms of ecclesiastical law, at all levels in the church and especially among it practitioners.

Canon E1 concerns the office of churchwarden, which is almost as old as English Canon Law itself. Section 4 describes churchwardens as “officers of the Ordinary”. But their work is almost entirely concerned with the parish in which they are chosen to serve. Apart from their legal statue as custodians of the property contained in the parish church, and their duty of maintaining good order in the church and churchyard, their chief role is stated with admirable simplicity in the same section of the Canon: they shall be foremost in representing the laity and in co-operating with the incumbent.

The day to day running of the parish is a growing burden, as financial demands grow, and as clergy must increasingly be shared among parishes or take on diocesan appointments in addition to their parish duties. Between PCC meetings decisions have to be taken and someone must implement those decisions, as well as carrying out the work of the PCC. Churchwarden and incumbent together face major practical and administrative responsibilities and depend on each other increasingly in shared ministry in the parish.

The proposed new Churchwardens Measure, which has completed it progress through General Synod and is now due to be considered by the Ecclesiastical Committee of Parliament, is a creature with a curious genesis. It began life as a Lay Officer Holders Measure, intended to tidy up the law relating to a variety of lay appointments in the church. But it evolved into a Measure designed to prevent anyone from continuing as churchwarden for a protracted period. It was said that parishes needed some means of moving ailing churchwardens on. Even so, it did not receive popular acclaim in the synod and embarrassingly had to contain provision that enabled parishes to disregard it if they choose to do so.

In its final form, the Measure contained some useful provisions, to exclude from office those who are disqualified from being charity trustees under the Charities Act or who have been convicted of an offence under the Children and Young Persons Act. The wise course would have been simply to amend the existing Churchwardens Measure of 1964, putting in those exclusions.

But the new Measure goes further, and in Section 9 it enables a bishop to suspend a churchwarden “for any cause which appears to him to be good and reasonable”. There is no right of appeal and no limit on the bishop’s discretion. He is required only to give the suspended churchwarden an opportunity “of showing reason to the contrary”. Given that a churchwarden is elected for a year at a time, this amounts to a power to exclude any individual from office. The suspension may take place two years running.

What is more, the suspended churchwarden’s duties are to be carried out by another person, appointed not by the parish concerned, but by the bishop. He is required to consult with the parish but again he has absolute discretion in his choice after doing so. He can appoint a diocesan official or even a cleric, and according to the measure, “any person so appointed shall, for all purposes of law, be deemed during that period to be a churchwarden of the parish in question”.

The effects of this new power are considerable. A suspended churchwarden will face massive damage to his or her reputation, and what ever the circumstances, an innocent person will be judged to be guilty by some within the parish on the basis of no smoke without fire. In the present heightened stage of paranoia, it will be assumed by many that some form of paedophile accusation has been made. Making statements of exoneration at a later stage will never repair the harm done.

The clergy cannot be suspended in this manner unless they have been charged with a criminal offence and are awaiting the completion of criminal proceedings. The involvement of the criminal law given an objectivity to suspension which cannot be provided by ecclesiastical inquiries. How can rumours and allegations be verified, unless by the criminal legal system? Again, in secular employment, someone who is suspended has rights of appeal and verification by an independent tribunal. But the powers proposed by the measure envisage that people will be suspended for reasons which fall far short of criminal misconduct. Far better, where a criminal offence is not in question, is to allow the parish simply to choose another churchwarden at the end of their year’s term of office.

Where the policy of the parish is concerned, rather than the integrity of individual churchwardens, the measure again poses very considerable problems. The power of suspension is not limited in any way to questions of misconduct or criminal offence. Where a parish is in disagreement with its bishop about key questions such as pastoral reorganisation or redundancy, or the appointment of a new incumbent, or its assessment of parish quota or its decision to pass Resolutions A, B or C, the powers contained in the Measure would be available to enforce diocesan policy against churchwarden opposed to its effects on their parish.

At the General Synod meeting in July 1997 which gave final approval to the Measure, the Synod was reassured that the Measure would only be used where necessary, and that a Code of Practice would be drawn up to promote its proper use. But such a Code can only be voluntary, and will not be subject to the same scrutiny as a Measure, which is in effect an Act of Parliament. And a Code of Practice is no substitute for fair legislation, which is what the parishes of the Church of England will rightly expect.

Ultimately, Parliament may have to decide for the Church of England, which has completed its internal procedures on the Measure. Does the Measure reach the standard of English law which expects the rights of individuals to be balanced against the power of large organisations? Does it respect the rights of parishes to choose their own churchwardens and administer their own affairs or does it represent a substantial increment of control given to the diocese? Does it, in the words of the Enabling Act, under which Church legislation is presented for Parliamentary approval, affect “the constitutional rights of all Her Majesty’s subjects”? The last word remains with our Members of Parliament.

Stephen Trott is Rector of Pitsford with Boughton in Northamptonshire and is a member of the Legislative Committee of General Synod.