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Employment Relations Act 1999 (Clergy)

Volume 403: debated on Tuesday 8 April 2003

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4 pm

I am very grateful to have secured the chance to debate this important subject. In one way or another, I have been campaigning on employment rights for the clergy since 1997. Although during that time there have been potentially important developments, progress towards a successful resolution of the issue has been at times painfully slow, notwithstanding the efforts of my hon. Friend the Member for Middlesbrough (Mr. Bell), who represents the Church Commissioners in this House and who is present today.

As the Department of Trade and Industry consultation on section 23 of the Employment Relations Act 1999 ended in December last year, I hope that rapid progress can now be made and that ministers of religion will be able to acquire rights which are long overdue. We are still awaiting the Government's response on the submissions that they received, but I hope that we will see it in the not-too-distant future. I hope that the Minister will say something about the consultation and enlighten us on the progress that has been made. It is essential that the Government recapture the initiative on the issue as soon as possible in the light of perceptions in some quarters that the Church has attempted to stymie the process. I shall say more about that later.

The complaints of the clergy about their conditions of service derive from the unusual categorisation of members of the clergy. There are two relevant categories. An employee is defined by the Employment Rights Act 1996 as
"an individual who has entered into or works under…a contract of employment".
On the other hand, a worker is an individual who does not have a contract of employment but who has some other contract to perform work or services for another person. Most of the rights conferred under the 1996 Act are for employees. They include the right to claim unfair dismissal, redundancy pay and maternity leave. Other rights such as the national minimum wage, four weeks' paid leave and limits on working hours are conferred on workers.

However, the clergy do not fall into either category. They are classified by case law and the Church as "office holders" because, owing to the nature of their position, a direct contract between the clergy and their employer cannot be identified. Generally, the courts have established that the relationship between Church authorities and ministers of religion is not a contractual one, apparently on the basis that ministers of religion owe their allegiance to God, rather than to a terrestrial authority. The relationship is seen as spiritual, not temporal.

It has also been said that the role of the priest or minister involves such a degree of independent judgment and discretion that his or her relationship with the Church authorities cannot be governed by a contract of service. I shall return to that later.

The issue has been pushed to the foreground in recent years by the gradual move by the Church of England from the use of freehold of benefice to the use of bishop's licence. Traditionally, almost all clergy held the freehold. To all intents and purposes, they had tenure for life once they were appointed; in other words, they had absolute security of employment and neither the congregation nor the diocesan bishop could easily interfere with it. However, nowadays some 3,500 clergy, constituting some 40 per cent. of the work force, operate under a bishop's licence, which must be renewed by the diocesan bishop every seven years. Naturally, that has led to a diminution in job security, and the arrangement is, surely, quintessentially temporal.

The assertion of the Archbishops Council in its response to the consultation was that there had been
"a very small number of contentious and well publicised cases"
that had
"highlighted certain weaknesses in the Church's present arrangements".
However, this is more than mere understatement. Indeed, high-profile incidents have exposed the urgent need for clergy to receive the same rights as other people.

The case of Ray Owen is well documented and is a cause celebre for those who advocate the extension of employment rights to the clergy. On reaching the end of his seven-year term under the bishop's licence, the Reverend Owen applied for an extension, but the diocese and bishop refused to accede to it, apparently on the basis of a recommendation by a panel that met without giving the Reverend Owen the opportunity to answer the criticisms levelled against him. His next action was to appeal to the bishop, without success.

Ultimately, the case was taken to the European Parliament, which voted by a majority of 308 to 10 that the treatment accorded to him had clearly breached natural justice and basic human rights. That, of course, had no impact on British legislation or, it appears, on the Church, as he was reinstated, with some reluctance, only as a pastoral auxiliary to the Bishop of Stafford as part of a deal to end a lengthy and costly court case. I believe, although I stand to be corrected, that he received no back pay for the time that he was out of employment in the Church.

Unfortunately, such cases are the tip of the iceberg. According to a survey that Amicus commissioned, which, according to its general secretary, contains some of the worst industrial relations practices and horror stories that he had ever heard, 82 per cent. of the clergy surveyed knew of a fellow minister whom the Church had treated unacceptably, and 81 per cent. recorded fears about how their Church authority would handle a conflict between a priest and the Church. In many ways, the most telling statistic in the study is that 71.6 per cent. believe that employment rights would not change the relationship with their parishioners or members of the public. Those figures are not small; they represent a sizeable majority. The last of them in particular indicates that, at least in the eyes of the clergy, little is incompatible between their being granted the rights that are rightfully theirs and the fulfilment of their mission as spiritual leaders of their communities.

I was relieved to read in the response of the Archbishops Council to the consultation that
"there is no fundamental theological incompatibility between being a minister of religion and having a contract".
In truth, I see no reason why the clergy should not be given a contract. The only argument that I have heard which gives any credibility to the notion that clergy should remain "office holders" is that they require a rare level of independence and free thought in their interpretation of scripture to allow them to administer their ministry effectively. That said, I cannot accept that it is impossible to devise a contract that takes account of that freedom. Is it not, in effect, a form of academic thought? Are scholars not equally contracted? This should not be a barrier to improved employment rights.

The response of the Archbishops Council to the DTI's consultation is an example of the attitude that the Church seems to take to the prospect of granting clergy their dues as rights. After sending in its statement on the last day of the consultation exercise, it made several contestable and controversial points and announced its intention to set up a review, which, it appears to argue, should make the Government's initiative secondary to it and put it on the back burner in relation to section 23.

In the many years since the Employment Relations Act 1999 became law, the Church has had ample opportunity to engage a wider constituency in a debate on the issue, including on the practicalities. It decided to ask for such a debate only as the consultation closed. Furthermore, not only did it fail to inform clergy that a review was one of its proposals, but it did not share with them any of the contents that were delivered. I emphasise again that that was on the final day of the consultation. It appears to be its avowed intention to be
"in close consultation with clergy who are involved at every level of synodical government and with all others who have an active interest, including Amicus".
Although I shall resist the urge to point out that it has barely made an effort to make headway on this for the past four years, it is worth mentioning that representatives of the Archbishops Council met Amicus representatives in the week before the closure of the consultation and refused to divulge so much as a single word of their proposals. So much for close consultation. It would appear that they are more concerned with advancing their agenda to move the issue back into the fold of the Church. That was without taking account of the fact that the council's response covered only clergy in England, when representatives of other denominations and Churches of the Union are also not covered by employment legislation.

The Church gives the impression that the McClean committee, now established, is a means of delay rather than a vehicle for progress. It has been suggested that the review would be used to reopen the issue of the freehold, and that is a difficult point. I have no doubt that any attempt to discuss it would create a number of divisions within the Church, as laity, clergy of different levels and patrons all expressed their views on what is genuinely a contentious issue.

Many see the freehold argument as indicative of the obfuscation of which the Archbishops Council seems sometimes to be fond. However, that issue should not prove too much of a barrier to full employment rights for the clergy. The one should not be traded off against the other. One should not lose employment rights if one has the freehold, and one certainly needs them if that freehold is lost.

By taking care of the rights issue, it could be argued that the problem of the freehold will ultimately take care of itself. Once an adequate contract mechanism is put in place, which would also inextricably tie a ministry to the relevant accommodation and property, would any hypothetical loss of security not be sufficiently tempered by the concomitant coverage of the new rights?

I have no doubt that such an arrangement would be of mutual benefit to the Church and the clergy. Sad to say, there is such a thing as an incompetent minister, and were he or she holding the freehold it would be difficult for the Church to rectify the problem, as long as the minister had the rights of appeal that were due to him or her.

It is not as if the Churches are always generous in other respects. Stipends and pensions are not princely—one of my constituents receives a niggardly pension from the Baptist Union. The issue is clear—the clergy need greater coverage by employment legislation, owing to the evolving basis of their employment, and they need that coverage soon.

The days of all clergy being covered by the freehold are long gone and, as a result of that and other factors, many have felt the need to resort to joining a union. The Church should acknowledge the need for access to employment tribunals in the case of a claim for unfair dismissal. It should also acknowledge that people's situations and circumstances change and that it must be able to cater for those changes. It should acknowledge that bullying and—although it is outwith the scope of the debate—discrimination exist in the Church, even at the highest levels, and that victims often feel that they have no recourse to their employer.

The Churches should acknowledge that God in all his wisdom gave us individual personalities and that those personalities sometimes clash. Above all, perhaps, they need to acknowledge that, regardless of the perceived practicalities, the clergy need rights now and not at some time in the future. A Christian church should act with Christian principles, generosity and fairness.

4.13 pm

This is my maiden speech in Westminster Hall, although it will be a very short one. I have not had the honour and privilege of speaking here before. It is also an honour and privilege, Mr. Deputy Speaker, to make that speech with you presiding.

I congratulate my hon. Friend the Member for Wirral, South (Mr. Chapman) on securing this debate. He has raised the issue on the Floor of the House on several occasions since 1997, and has been a consistent advocate of employment rights for the clergy, a role in which I have consistently encouraged him.

Of course, the Church Commissioners and the Church of England have a view on the matter, and that view must be described and defined through various organs and channels, such as the synod, the Archbishops Council and the Church Commissioners, but the Church of England has welcomed the opportunity to respond to the discussion document that the Department of Trade and Industry issued last July. We have no difficulty with or objection to that document, and, as I said, we welcome the intervention of my hon. Friend.

Stipendiary clergy fall into one of three categories. The majority—some 5,500—have the freehold, more than 1,000 clergy have contracts of employment and the remaining 3,500 have neither the freehold nor a contract but operate under a bishop's licence. The Church of England firmly believes that the clergy and all others who work for it are entitled to terms and conditions of service that adequately protect their rights, recognise their responsibilities and provide proper accountability arrangements. That has been the motivation behind a series of measures that the Church has undertaken in recent years. It spent six years examining the aspects of clergy discipline and introduced a new clergy discipline measure that has been agreed by the Ecclesiastical Committee and is now awaiting parliamentary approval.

Historically, the clergy of the Church of England have, for the most part, enjoyed a measure of independence and security of tenure that far exceeds that of those in almost any other walk of life. That remains the case for the majority who possess the freehold. As my hon. Friend said in his cohesive and coherent speech, there is no mutual exclusivity—if I may use a legal term—between being a minister of religion and having a contract with access to employment tribunals in case of dispute. There is clearly a need to explore how additional protection can be provided for those clergy whose position is not adequately safeguarded by the present arrangements.

The Church of England is committed to good practice and protection for its clergy and is taking seriously the need to put additional safeguards in place. Points raised in this short debate will be brought to the attention of the Church, which will be willing to consider them through the working group that was set up by the Archbishops Council.

I thank my hon. Friend and the Minister for allowing me to intervene under your chairmanship, Mr. Deputy Speaker, in this short debate. We will listen to what the Minister has to say. It will be relayed back to the Church, and we are confident that, at the end of the day, some satisfaction will be achieved for the clergy, the Government and my hon. Friend.

4.17 pm

I congratulate my hon. Friend the Member for Wirral, South (Mr. Chapman) on securing the debate. He has a long record of interest in the subject, and I am pleased also to hear the comments of my hon. Friend the Member for Middlesbrough (Mr. Bell), particularly as he fulfils the role of a Church Commissioner. What we have lacked in quantity in the Chamber we have made up in quality, because the complex issues that we are dealing with in the Department of Trade and Industry have been reflected in the two contributions.

I welcome the opportunity to talk about the Government's approach to such a highly complex topic. As was said, we are currently reviewing the issue of employment status in relation to statutory employment rights and, as part of the review, the Government published the discussion document on 11 July last year.

That sought views on the potential effects of and Justification for extending the current framework of statutory employment rights to certain people who do not have access to those rights at the moment. It also asked for views on whether there might be alternative approaches, and we intend to publish a response to the consultation later this year.

The review has raised a variety of issues, and my officials have been in discussion with a wide range of organisations and individuals. Some of the points raised are specific to one group of workers or sector of industry, while others affect the whole labour market. Applying the principles of better regulation, the consultation has involved a number of sector-focused round table discussions, covering construction, the public sector, hospitality, retail and tourism, agency workers, small businesses and, of course, the clergy.

No one should doubt that the Government recognise the importance of all workers having appropriate employment protection. For that reason, we were keen to have open consultation and we have undertaken a thorough analysis of the large volume of detailed evidence received. We have been considering numerous options to achieve the right balance between employer flexibility and fairness for workers and it is vital to get that balance right.

The clergy are one group of workers who currently lack the protection of employment rights provided by employment law because employment tribunals have consistently been unwilling to accept that their relationship with the Church is one of employment. That relationship is seen to be spiritual, rather than contractual. The Government are sympathetic to the clergy's position and want to ensure that they are treated fairly. The question is what is the most appropriate way forward to deliver an acceptable outcome. We are looking at the current framework of protection in different religious organisations and we are considering whether employment protection for the clergy could be addressed adequately through non-regulatory means, or whether regulation might be necessary to provide that protection. Churches, faith-based organisations, trade unions and the clergy have all contributed their views on whether the position of the clergy needs to be improved and, if so, how best to do that. We have been very pleased by the level of response to the consultation. This is clearly an area in which there is a lot of interest and our discussion document attracted more than 300 responses just from members of the clergy.

When I hosted a round table meeting in the Department of Trade and Industry last November, the debate was lively and the views expressed were diverse. There were representatives from a number of different faiths, including Hindus and Muslims, and a wide range of Christian denominations from the Roman Catholic Church to the free Church tradition. Subsequent contacts have been made with a number of other faiths and denominations. Some have identified employment protection as being mainly a concern for the Church of England and its clergy, but it is clear that the issue is not limited to the established Church.

It has become clear that the clergy are not a homogenous group. They exist within different faiths and different organisations with different concerns. The framework of employment protection and the nature of employment relationships between clergy and faith organisations varies considerably. I shall try to set out in the broadest terms the picture that has emerged from the consultation.

Developed regulatory frameworks exist within many long established western Churches and perhaps that is most evident in the Roman Catholic Church, which has extensive canon law. The Church of England, the Methodist Church, the Church of Scotland and others also have developed regulatory frameworks, which give members of the clergy certain employment benefits, such as leave and parental rights that in some cases are equivalent to, or even surpass the statutory minimum. They also cover disciplinary matters. It has been argued that that implies less need for intervention by the Government, but some clergy in those Churches, and the unions, believe that the mechanisms are inadequate. They argue that, in any case, they need recourse to an external mechanism, such as a tribunal.

Eastern Churches and some of the free Churches are typically less hierarchical, with responsibility for the clergy usually devolved to the local Church. Usually, the rules and regulations that guide Churches in their relationship with the clergy are less explicit. It has been argued on one hand that that makes the position of the clergy vulnerable and, on the other, that Government intervention would undermine the bond between the clergy and the congregation. It was also argued that for some small evangelical Churches a successful unfair dismissal claim could have a devastating effect and, indeed, that it could threaten their very existence.

In weighing our options, we must take on board the concerns expressed by the clergy, Churches and faith-based organisations. I am all too aware of the practical difficulties inherent in a one-size-fits-all approach and we need to consider carefully how to achieve our goal of securing protection for the clergy, whether through regulatory or non-regulatory means.

A very positive aspect of the review has been the commitment expressed by so many Churches and faith-based organisations to employment protection for their clergy. Many are constantly reviewing the relationship. I understand that, as my hon. Friend the Member for Middlesbrough said, the Church of England has embarked on a review to consider the balance of rights and responsibilities for the clergy, including issues such as freehold. It will seek to identify options for addressing unsatisfactory features in the current arrangements, including the possibility of extending the use of contracts. In that case, it would need to be determined against whom a contract should be enforceable.

Our understanding is that that review is being conducted in consultation with clergy and other interested parties including the Amicus trade union, although I take on board the points made by my hon. Friend the Member for Wirral, South on that review. Such initiatives are important and to be welcomed, but there must be true and meaningful dialogue between Churches and their clergy. My main concern is that if we were to go down the path of self-regulation, such initiatives would have to deliver the kind of employment protection that we have introduced for so many other workers since we came into government in 1997.

The Government have the power, under section 23 of the Employment Relations Act 1999, to extend employment rights to the clergy. We would wish to keep that under review if a non-regulatory approach were tried. Although we would encourage a non-regulatory approach, that section is available, giving us the facility to introduce regulation where we deem that to be necessary.

So, to summarise, we have listened to a wide variety of views and concerns that have been raised with us. As my hon. Friends the Members for Middlesbrough and for Wirral, South have recognised, this is not just a Church of England issue. Discussions are profound and slightly beyond some of the other discussions that I have had with, for example, agency workers and office holders such as registrars. This matter is far more complex because it goes to the heart of something far more spiritual than the normal tenets of industrial relations law. We recognise that this issue has attracted a great deal of interest and speculation. It requires much sensitivity from Government Ministers and our officials. As I have tried to illustrate, this is a complex area and we need carefully to consider what is an appropriate response.

I shall not pre-empt the outcome of the Department of Trade and Industry review in this debate, but the remarks made today, especially by my hon. Friend the Member for Wirral, South, will be taken into account in the consultation and in our deliberations. I hope that I have illuminated the process and addressed the concerns highlighted. We intend to publish our response to the consultation document. If that has taken a little longer than usual, I hope that I have explained some of the reasons why and the need for us to be very careful, especially in relation to the effects of the review on the clergy.

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes past Four o'clock.