The draft legislation on clergy Terms of Service will return to General Synod in February. Below is part of a talk given by Paul Benfield, a member of Synod, in which he outlined his concerns that not enough has been thought through

Time off sounds relatively straightforward. It is stated that an office holder shall be entitled to an uninterrupted rest period of not less than 24 hours every seven days.

This is where it seems to me that the regulations become potentially unworkable. How am I to ensure that my day off is not interrupted. What if a parishioner calls me to a sick relative on my day off? Of course, as a priest called to serve I go and pray with them, anoint them or whatever is required. But that notion of service does not fit happily with employment rights.

The fact is that once my day off has been interrupted that to which I am entitled – my 24-hour uninterrupted rest period – has not been granted. Although I can arrange things if I choose so that I do not take any services, nor any funerals or the like on my day off, I cannot stop the phone ringing or the doorbell going.

The Bishop of Dover, the chairman of the steering group which is trying to get this through Synod, says he expects there to continue to be goodwill and common sense. But goodwill and common sense need not operate once you have laid down in law something as prescriptive as a 24-hour uninterrupted rest period.

Let us imagine that my weekly rest period is constantly interrupted and I become run down and eventually I go off with stress-related illness. There is then the potential for me to claim that the illness has been brought on by the failure to receive my uninterrupted rest period and a claim for compensation or constructive dismissal. Is the church ready for such claims?

Let us continue with time for public duties. The draft regulations allow an office holder to take time off for public duties. These include work for any public authority such as a council or work for any charity. But most priests would not say that they are taking time off if they choose to become elected to serve on the local council or if they become a trustee of a charity. They would say that it is all part of their priesthood, serving the local community as appropriate.

Many clergy are school governors, both of church schools and non-church schools. Many clergy serve on diocesan synods and committees, and would regard that as part of their work as a priest. But under the regulations, all this can be controlled by the bishop. A priest must only spend an amount of time which is reasonable in the circumstances and in the event of a dispute the bishop will decide – with no right of appeal.

So if I am a Christian socialist and spend time as a socialist councillor in order to try and bring in the kingdom in that way, my Tory bishop can tell me that my time spent is unreasonable and he is the final arbiter with no right of appeal. I maybe opposed to abortion and devote time to SPUC, but my liberal bishop can say that I am spending too much time on such work. The power and control passes to the bishop.

You may say that there should be some control over my time – but there already is. If I am not doing what is required under canon law (taking services, visiting schools, visiting the sick and so on), the bishop can take action. But this attempt to separate out parts of the priests life into time spent on the duties of his office and time off for public duties is misconceived. For a parish priest is there to be as much as to do.

And what of bishops spending time on public duties? The former Bishop of Oxford, Richard Harries, spent many hours in the House of Lords in debates on ethical matters such as war and bioethics, and he brought a legal action against the Church Commissioners over their investments policies. Was that time off for public duties? Was it time off at all? I would say no, it was part of his fulfilment of his episcopacy. Yet under the new regulations it would be possible for someone to complain to the Archbishop of Canterbury that he was spending too much time on such matters and the Archbishop would have to rule on it.

You can see that such a ruling could be open to abuse by an establishment archbishop trying to deal with a radical fellow bishop. Power in the hand of one man is always open to abuse, and goes against the polity of the Church of England, which has always had checks and balances on such abuse.
But it all comes back to the impossibility of trying to set out what is and what is not a priests or a bishops work. A priest and a bishop are ordained to be as much as to do.

Continuing education. Each office-holder shall be required to participate in arrangements made by the bishop for his Continuing Ministerial Education (CME). This maybe sensible in some cases. It is certainly a good thing that a bishop can require clergy to attend a training course on, say, child protection. But if he says everyone must go on a course on gender awareness or liturgical dance, then they will have an obligation to do so.

It is known that in some dioceses the courses offered on CME are poor. We are likely to end up with clergy attending courses in which they have no interest, just to tick the box. Experience from the secular world will show that this is what happens when training courses, seen by the participants to be irrelevant, are made compulsory.

Capability procedures. The new rules will allow a priest or bishop to be removed from office on the grounds of lack of capability. Of course there must be procedures to remove a priest or bishop when he or she is physically or mentally incapable of performing the duties of his or her office. However, such procedures already exist and there is no evidence that the current system do not work properly.
If a priest or bishop is removed from office on the grounds of lack of capability, he will have the right to
apply to an employment tribunal and claim that he has been unfairly dismissed – that he was not in fact incapable of carrying out the duties of his office. So we will have members of a Church, a Christian body, submitting themselves to a secular body, the employment tribunal, to determine what is effectively an internal dispute between members. St Paul has something to say about Christians submitting themselves to secular courts to settle disputes in 1 Corinthians 6.1-7.

Would it not be possible to set up some internal Church tribunal to rule on capability rather than submitting to the secular employment tribunal? The church has recently set up Clergy Discipline Tribunals so why not capability tribunals? Employment tribunals consist of a legally qualified chairman and two other members, generally consisting of one person with an employers perspective, as it were, and one with an employees perspective. But there will be no guarantee that any of the members will be Christian.

There is no guarantee that any members will have the slightest idea about the office and work of a priest.
There is no guarantee that any member of the tribunal will be a priest – indeed that is most unlikely. Yet they will be deciding whether or not the applicant before them was capable of exercising that office of a priest and whether or not he has been unfairly dismissed from it. Sometimes the area of dispute may verge on the doctrinal, and the secular courts have frequently expressed themselves unwilling to determine disputes about Christian doctrine. I foresee great difficulties here.

Of course, we are assured that only a very few cases are expected to go to employment tribunals and even fewer are expected to be claims for unfair dismissal. But how do they know? Surely that is just wishful thinking.

Ministerial review. In the case of a dismissal for lack of capability arising from physical or mental incapacity, the issues may be relatively straightforward. But the current proposals envisage the possibility of capability procedures sometimes arising after and linked to ministerial review. For the first time, it will become a legal requirement for priests to undertake ministerial review. You might have thought that, if it was going to be a legal requirement, then there would be a national standard for ministerial review, but each diocese is going to be free to set up its own system. This, of course, will create problems when people move from one diocese to another. The reason that each diocese is to have its own system is that the bishops want it that way. They refused to agree to a national system.

So every priest and bishop will be subject to compulsory ministerial development review. This review will involve the setting of targets and objectives. I tried to get the revision committee to specify exactly what sort of targets could be set. But they would not go down that line because the Bishop of Dover did not want to separate out one area of a priests life and work from another. So the target can be anything. The target could be to get the parish share in. The target could be to get people into church. This means that the priest, far from being faithful to his or her ordination vows, could become a mere fundraiser or entertainer. He must show that he is getting the numbers up to prove that he is doing a good job. You may think that I am sounding an unwarranted alarmist tone. But how can we know, unless what is involved in ministerial review is spelt out more clearly?

The draft Measure simply says that the Archbishops’ Council may make regulations to assess the performance of office holders. The draft regulations simply say that it shall be the duty of each office holder to cooperate in any ministerial development review. But nowhere are we told what this review shall consist of and who will undertake it. Yet the bishop must make a written record of that unspecified ministerial review and the office holder must sign it. Presumably if he refuses to sign the record then he has not cooperated with the ministerial development review.

He is then in breach of his duty to cooperate with the review, and can be disciplined for failing to do something which he is required to do under the laws ecclesiastical. It is not that there is necessarily anything wrong with ministerial review. Indeed, if it is done well, it should help the priest develop his or her ministry, but still, surely, it is only fair that we are told what it will involve.

A ministerial review can lead to the setting of targets which, if not met, could lead to capability procedures and removal from office. The draft regulations require the bishop to make the arrangements for the ministerial review of his clergy. He is the final arbiter of what they shall be. He must take note of any guidance on the matter issued by the Archbishops’ Council, but he decides. It seems to me that this is too much power for one man (or, in the future, one woman).

What if the priest happens to express views with which the bishop disagrees? One view was clearly stated in a speech in General Synod in February 2007 by Mrs April Alexander from Southwark Diocese, and a member of the steering group which is pushing this through. She said that as a layperson she was shocked at how clergy flout the wishes of their bishop. This type of thing, she said, is totally unknown in the secular world, if one hopes to continue in one’s current employment.

So there we have it. In the new order of common tenure, clergy must not disagree with their bishop. We are to follow the secular model and the clergy must only express views in accordance with those of their bishop – as though he were their manager or company chairman. Never mind that the oath of canonical obedience only requires them to obey the bishop in all things lawful and honest. In the new order, you must not disagree with your bishop if you wish to remain in office.

Now of course in a diocese where there is a nice cuddly lovable bishop who would not abuse his position and power, there may not be anything to worry about. But what about the future when that nice cuddly lovable bishop retires and he is replaced by a ruthless or incompetent bishop? Those who disagree with the views of their bishop may find themselves subject to procedures to bring them into line or remove them.

So I repeat: it is not that I am against ministerial review. It is just that we must know what it will involve so that we are reassured that it cannot be abused. It must not be left as some unspecified process which each bishop can decide. The draft legislation is deficient in this regard at the moment, and attempts to change it have so far failed.