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Monday, September 26, 2016
Clergy and religious make submission to government on employment rights
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 A joint submission on the issue of employment rights has been made to the Government Department of Trade and Industry by the Catholic Bishops' Conference of England and Wales, the National Conference of Priests' standing committee and the Conference of Religious. The joint submission represents a detailed and robust response to a DTI discussion document on Employment Status in relation to Statutory Employment Rights. It argues against any change to the existing law pertaining to the employment of Catholic clergy. The submission states: "Any change in the employment status of Catholic clergy would not only be inappropriate but would also fundamentally undermine the relationship between a priest or deacon and his bishop (or religious superior) and between the cleric and the people entrusted to his pastoral care. "The Code of Canon Law, which is binding on the Catholic Church throughout the world, provides sound and adequate safeguards for the rights of the clergy with reference to their pastoral office." The Catholic Bishops, the standing committee of the National Conference of Priests - representing all the diocesan priests in England and Wales - and the Conference of Religious, a body bringing together more than 250 religious orders in England and Wales, are united in wanting no change in the employment status of Catholic clergy. The joint response, which was this week sent to the DTI, concludes that "the existing procedural and substantive norms within the Catholic Church already provide sufficient safeguards for the clergy." Mgr Andrew Summersgill, General Secretary of the Catholic Bishops' Conference of England and Wales, said: "This is an important issue of principle. Bishops, representatives of the National Conference of Priests and the Conference of Religious agree it would not be appropriate to regard priests as employees." Fr Shaun Middleton, spokesman for the National Conference of Priests, said: "The submission to the DTI recognises the safeguards that exist for priests and religious in the Code of Canon Law and acknowledges the special relationship between a priest, his bishop and the people he serves. "We are confident the submission reflects the rights, duties and obligations of priests who have to be seen as more than atypical workers." Sister Raymunda Jordan, General Secretary of the Conference of Religious in England and Wales, said: "I appreciate the collaboration that has taken place in producing this response which the Conference of Religious fully endorses." The full submission is reproduced below. DTI Discussion Document on Employment Status in relation to Statutory Employment Rights Joint Response by the Catholic Bishops' Conference of England and Wales, the Standing Committee of the National Conference of Priests, and the Conference of Religious December 2002 1. CONTEXT 1.1 The aim of the Government review of employment status is "to seek views on the scope of statutory employment rights and in particular on whether the current framework encourages participation in the labour market, especially in flexible forms of work and whether it promotes a wide range and diversity of employment opportunities" (Discussion Document no.3). 1.2 The Discussion Document notes the present position of clergy as office-holders and states that, because of this, "ministers of religion are unable to seek redress through the legal system in the event of any dispute over their treatment by church authorities" (no.78). The same paragraph also accepts that members of the clergy may be employees of hospitals, prisons or other organisations in respect of work for these organisations as chaplains. 1.3 This joint response represents the views of the bishops of England and Wales, the standing committee of the National Conference of Priests (a body elected by and representing all diocesan Catholic priests in England and Wales), and the Conference of Religious (a body bringing together a membership of over 250 male and female religious orders present in England and Wales). In our response to this review, we submit that any change in the employment status of Catholic clergy would not only be inappropriate, but would also fundamentally undermine the relationship between a priest or deacon and his bishop (or religious superior) and between the cleric and the people entrusted to his pastoral care. In addition, it is our view that the Code of Canon Law, which is binding on the Catholic Church throughout the world[1][1], provides sound and adequate safeguards for the rights of the clergy with reference to their pastoral office. 1.4 The Catholic Church in England and Wales, which consists of 22 dioceses, the Bishopric of the Forces and the Apostolic Exarchate of the Ukrainians in Great Britain, is an integral part of the Roman Catholic Church and is not an autonomous national Church. In 2001, there were 3,994 diocesan priests, 643 retired diocesan priests, 1,606 priests belonging to religious orders and 458 permanent deacons within England and Wales, the vast majority of these clerics being involved in parochial ministry in dioceses. 1.5 It will be seen from the statistics that the concept of "clergy" is not a simple one. Only diocesan priests and permanent deacons are fully subject to the diocesan bishops. Priests belonging to religious orders are also subject to their own superiors in matters relating to the particular lifestyle of their order. In accordance with the tradition of the Catholic Church, the great majority of the priests are celibate, although permanent deacons may be married. In addition to the ordained ministers, there are numerous religious sisters engaged in diverse forms of pastoral ministry throughout England and Wales. 2. NATURE OF CATHOLIC MINISTRY 2.1 In the Church's teaching the vocation to ordained priesthood has never been considered a career. No-one has the right to ordination in the Catholic church. Ministry as a priest or deacon is understood as a vocation, a gift from God, which is all-encompassing and life-long. The call to ministry which individuals receive from God is confirmed by the bishop at the moment of ordination as a deacon or priest. The deacon's or priest's whole life is at the service of the people entrusted to his care; his ministry is not limited to the particular work or office he is called to undertake. 2.2 The relationship between a cleric and his bishop is a profoundly spiritual one, having much broader aspects than those relating merely to his work. A cleric's spiritual life and development, as well as his material welfare, are all major aspects of this relationship. Priests and deacons do not operate as individuals, carrying out an isolated, personal ministry, but share in a common ministry in union with the bishop. Moreover, the ministry of a priest goes much further that the provision of sacraments and other offices of the Church. He is called to be a father and brother to the people entrusted to him, available to accompany them, whatever the need and whenever the occasion requires it (For the canons summarising the duties of a parish priest, see appendix two). Thus, the language of employee, employer and service provider is completely alien to the Catholic understanding of ordained ministry. 2.3 Immediately prior to his ordination, a deacon or priest is required by canon law to make a declaration written in his own hand and signed in which he attests that he is requesting ordination freely and of his own accord, that he understands and accepts the rights and duties which flow from Holy Order and that he will devote himself perpetually to the Church's ministry. A standard example of this declaration is given in Appendix One. In addition to this declaration, during the Ordination ceremony, all those to be ordained make a promise of canonical obedience to the diocesan bishop and his successors. 2.4 Most importantly, in the Catholic understanding of ministry, all priests and deacons are bound by ordination to a diocese or religious order by incardination. This bond is life-long and is the source of mutual rights and obligations between the individual cleric and his bishop or religious superior. The reasons for incardination are (a) to permit the bishop to provide effectively for the pastoral needs of his diocese; (b) to promote discipline amongst the clergy; and (c) to ensure that the spiritual and material needs of each cleric are met. Unlike the clergy of the Church of England or clergy of some other denominations, Catholic priests normally remain within the same diocese or religious order for the whole of their lives. 2.5 Incardination in a particular diocese or religious order is the firm juridical basis for the life and ministry of every cleric, regardless of the work that they do. Indeed, the cleric's bishop or religious superior retains the life-long commitment to care for him spiritually and materially, even if the cleric is removed from pastoral ministry or incapacitated for office in any way. This again makes the position of Roman Catholic clergy radically different from that of the ministers of the Church of England or other religious groups where no such provision exists. 2.6 Thus, as well as having all the rights and obligations common to all members of the Church, the clergy by ordination and incardination have other specific rights and obligations. Those most pertinent to the matter in hand are: the right to be free from coercion in choosing a state of life, the right to a good reputation and to privacy, the right to vindicate and defend one's rights before an ecclesiastical forum, the right to be judged at trial in accordance with canon law, the right to be subject to canonical penalties only in accordance with canon law; the right to appropriate pastoral offices; the right to sufficient remuneration and welfare provision; the right to an annual holiday; the obligation to show reverence and obedience to the Pope and one's own bishop; the obligation to undertake any functions which the bishop entrusts to them; the obligation to promote brotherhood and cooperation amongst the clergy; the obligation to promote the mission of the laity; the obligation to pursue holiness; the obligation to observe celibacy; the obligation to pursue life-long learning and personal development; the obligation to observe simplicity of life; the obligation to reside in one's own diocese; the obligation to refrain from things unbecoming or foreign to the clerical state; the obligation to refrain from public office involving the exercise of civil power; the obligation to refrain from business or trade; the obligation to foster peace and harmony; and the obligation to refrain from active participation in political parties and undertaking governing roles in trade unions. 2.7 Many of these rights and obligations have an important influence on the relationship between priests and deacons and their bishop. In the event of dispute, the clergy can defend their rights by means of due process before a competent ecclesiastical forum. This may take the form of recourse to the bishop's superior with a final hearing if necessary before the Supreme Administrative Tribunal of the Church based in Rome, or a judicial process before a local diocesan tribunal, or by means of reconciliation and arbitration. All these methods of dispute resolution are regulated by detailed procedural norms in canon law and always include a right of appeal. 3. APPOINTMENT TO AND LOSS OF OFFICE 3.1 A major concern of the review would appear to be the rights of clergy with regards to the holding of pastoral office, particularly with reference to loss of that office. The following paragraphs set out the canon law provisions with regards to the appointment, transfer or removal of parish priests. 3.2 The right to appoint parish priests belongs to the diocesan bishop alone and this he does by free conferral of the office, after presentation by the competent superior if the cleric is a member of a religious order. Once he has taken possession of the parish, the parish priest has stability of office and is therefore appointed for an indefinite period of time. 3.3 Here again, the difference of approach between the Catholic Church and the Church of England is clear. There is no concept of "parson's freehold" in the Catholic Church. A priest or deacon is ordained for ministry within a diocesan perspective. The particular parish to which he is assigned is only consequent to this. Moreover, unlike the Church of England, vacancies in parishes are not advertised and priests do not apply for posts or undergo interview. Instead, all appointments are made by the bishop, taking into account the pastoral needs of his diocese, the parish concerned and the ministerial experience of the priest. 3.4 A parish priest ceases from office if he is removed and transferred by the diocesan bishop following established canonical process, or by resignation. At 75, a parish priest is requested to submit his resignation to the diocesan bishop, who can decide to accept it or not. We consider these below. Removal 3.5 A parish priest may be removed from office if his ministry becomes harmful or ineffective. Principal causes for this may be: a manner of acting which brings grave detriment or disturbance to ecclesiastical communion; ineptitude or a permanent infirmity of mind or body which renders the priest unable to fulfil his functions usefully; loss of a good reputation among upright and responsible parishioners or an aversion to the priest; grave neglect or violations of parochial duties which persists after a warning; and poor administration of temporal affairs with grave damage to the Church. 3.6 Having gathered the necessary information and following discussion of this with a canonically appointed group of parish priests, the bishop is required to persuade the priest concerned to resign, after having explained the reasons for the removal. If the parish priest refuses, he is invited to present his objections in written form, having read the bishop's documentation. The priest may also present proofs of his own. The bishop is then required to carry out further investigation and to discuss the outcome once again with the aforementioned group of parish priests. If he decides that the removal must take place, he decrees so immediately. 3.7 The removed priest has the right of recourse against this decision to the competent authority in Rome, with a final hearing before the Supreme Administrative Tribunal if necessary. The Tribunal will examine the actions of the bishop and higher authority to which the priest had recourse and will make a judgement concerning the legality of the actions "in decernendo vel in procedendo". In addition to the judgement regarding the illegality of the acts, the Tribunal can also adjudicate, at the request of the priest, the reparation of damages incurred through the unlawful act. The priest always has the right to the use of an advocate or procurator in these proceedings. Indeed, a legal representative will be appointed ex officio is the person making recourse lacks one. 3.8 The bishop is required to provide the removed priest with another office, if he is suitable, or with an appropriate pension, since his canonical obligation to support the priest materially and spiritually remains. Moreover, if the man is sick and cannot be transferred from his place of residence without inconvenience, the bishop is to leave him the use of the residence while the necessity lasts. We consider that in all aspects, including the financial one, the benefit available to the priest goes beyond what an Employment Tribunal may award any unfair dismissal claim in other contexts. Transfer 3.9 A parish priest can be transferred from one office to another for the good of souls or because of necessity or advantage to the Church. Any decision in this regard will usually be taken by the bishop in consultation with, and with the agreement of, the priest concerned. The law requires that the bishop must propose the transfer in writing and persuade the priest to consent to it out of love of God and souls. 3.10 If the priest is unwilling to accept the transfer, he is required to give his reasons in writing. Should the bishop decide to proceed with the transfer, he must discuss the reasons for and against the move with two other parish priests canonically selected before trying to persuade the priest once again. If the priest still refuses the transfer, the bishop is to decree the transfer and then declare the parish vacant. 3.11 The priest concerned retains the right to hierarchical recourse to the competent authority in Rome, with a final hearing before the Supreme Administrative Tribunal if necessary. The Tribunal will examine and judge the case as set out in 3.7 above. 3.12 Should the transfer be upheld, the priest is bound under his oath of canonical obedience to accept the decision. He will be appointed to a new post within his diocese and supported financially in the same way as before. If, notwithstanding the decision of the Tribunal, the priest persists in his refusal to accept transfer then disciplinary action will be taken in accordance with the canon law. In these proceedings, the priest's right of defence is firmly upheld. It should be noted that, even if a penalty is imposed (and this cannot include dismissal from the clerical state itself. See no. 4 below), the canon law requires that provision must always be made so that the priest does not lack those things necessary for his decent support. Chaplaincies 3.13 The situation with regard to chaplaincies unrelated to parish work is completely different: in those cases, the relationship of employee and employer does exist as between the NHS Trust, Prison Service, school, Armed Forces or other institution on one hand and the priest on the other. In such cases the usual grievance, disciplinary and other procedures would apply, as with any other employee of the institution concerned. The remuneration for the appointment would rest with the priest. The position is complicated, though, in that many similar relationships are expressed to be with a named individual, but the priest takes on his role as chaplain ex officio by virtue of his being the local parish priest: if he leaves the parish, his role of chaplain would normally pass on to his successor in the parish. The income arising from such chaplaincies would pass to the parish concerned, not to the individual. 4. DISMISSAL FROM THE CLERICAL STATE 4.1 It is essential to maintain the distinction between holy orders as such and the clerical state as a juridical status. Once validly ordained, a man is a deacon, priest or bishop forever since, in Catholic theology, an indelible mark is made on his soul. Thus, whether he continues in active ministry, or whether he is faithful to the obligations of the clerical state, he remains ordained and this cannot be taken from him by any ecclesiastical authority. 4.2 However, a cleric can lose the clerical state and, therefore, no longer be the subject of the rights and obligations of the clergy. The clerical state can be lost in one of three ways: (1) as a logical consequence of a decision of a competent tribunal declaring an ordination invalid; (2) by the penalty of dismissal from the clerical state; (3) by papal dispensation on request of the cleric himself. 4.3 The circumstance foreseen in (1) happens extremely rarely and the decision must be made in accordance with special norms in the Code of Canon Law and observing the canons which establish the procedure for the ordinary contentious trial. 4.4 Dismissal from the clerical state (2) is a perpetual expiatory penalty and is only attached to the gravest of offences. These seven offences are listed exhaustively in Book VI, Part II of the Code of Canon Law (see appendix three). Only the supreme legislator, (ie the Pope or the whole College of Bishops) can establish laws to which the possibility of dismissal is attached - individual bishops have no power to do this. Furthermore, cases involving dismissal from the clerical state must be decided at a formal penal trial by a collegiate tribunal of three qualified ecclesiastical judges. The norms for a penal trial must be carefully followed, including the right of the defendant to professional canonical assistance and the right of appeal. 4.5 In the event that the judgement of dismissal from the clerical state is upheld and therefore the cleric's rights and obligations cease, the bishop cannot simply abandon the cleric. He is required by canon law to provide for the dismissed cleric who is truly in need in the best way possible. 5. CONCLUSION 5.1 The relationship between the clergy and their bishops and the clergy and the people entrusted to their care is a unique one. It is based on a God-given call to ministry within a diocesan setting, the characteristics of which are incompatible with the employer-employee relationship. Any extension of employment rights to the clergy would not only alter radically and undermine the relationship between a priest or deacon and his bishop, but would also attack the very basis of Catholic ministry. Priests and deacons are called to serve the people entrusted to them and to spread the message of the Gospel amongst all people as a result of the grace of ordination, not because they have entered into a quasi-contractual agreement to provide a service to a defined group of clients or consumers. 5.2 This paper has attempted to show that the rights of clergy within the Catholic Church are clearly recognised and protected by its own canon law. Incardination ensures that the spiritual and material needs of the clergy are adequately met by the bishop or religious superior concerned. Moreover, the Code of Canon Law provides sound and obligatory procedures by which a cleric can defend his rights and seek redress, particularly with regards to removal or transfer from office or dismissal from the clerical state. All forms of arbitrary action are unacceptable and unlawful. 5.3 Thus, in our view, the existing procedural and substantive norms within the Catholic Church already provide sufficient safeguards for its clergy. The bishops of the Church are committed to ensuring that these provisions are fully and justly implemented. In the event that the Government should have concerns about specific matters covered in this paper, every effort will be made to clarify them and even provide alternative solutions, if necessary, within the limits defined by canon law. Appendix One A Sample Declaration of Freedom I, the undersigned............................, have already presented to the Bishop my petition for ordination to the (diaconate/priesthood). Now that the Ordination is near, I hereby testify and swear, after diligent consideration in the sight of God - Firstly, that in receiving this Order I am in no way driven by coercion or force or by any fear; but that I desire it eagerly and of my own accord, and wish for it with full freedom of will, since I know clearly and realise that I am truly called by God. And I affirm that I am fully aware of all the duties and responsibilities that are attached to this sacred Order; of my own free will I wish and intend to undertake these, and I am determined, with the help of God to observe these most faithfully throughout my whole life. In particular I declare that I am fully aware of all that is implied by the law of celibacy; I am fully determined to fulfil this obligation and to keep it totally, with God's assistance, to the very end. Finally, I sincerely promise that, in accord with the sacred Canons, I will comply most obediently with all my Superiors require of me and with all that the Church's discipline demands; and that I am ready to give an example of virtue both in deed and word, so that my undertaking of so great an office may indeed be worthy of reward from God. This I promise; this I vow; this I swear; may God assist me, and these Holy Gospels, which I touch with my hand. Appendix Two The Ministry of the Parish Priest Canons 528-529 Canon 528 1 The Parish Priest has the obligation of ensuring that the word of God is proclaimed in its entirety to those living in the parish. He is therefore to see to it that the lay members of Christ's faithful are instructed in the truths of the faith, especially by means of the homily on Sundays and holydays of obligation and by catechetical formation. He is to foster works which promote the spirit of the Gospel, including its relevance to social justice. He is to have a special care for the Catholic education of children and young people. With the collaboration of Christ's faithful, he is to make every effort to bring the Gospel message to those also who have given up religious practice or who do not profess the true faith. 2 The Parish Priest is to take care that the blessed Eucharist is the centre of the parish assembly of the faithful. He is to strive to ensure that Christ's faithful are nourished by the devout celebration of the sacraments, and in particular that they frequently approach the sacraments of the blessed Eucharist and penance. He is to strive to lead them to prayer, including prayer in their families, and to take a live and active part in the sacred liturgy. Under the authority of the diocesan bishop, the Parish Priest must direct this liturgy in his own parish, and he is bound to be on guard against abuses. Canon 529 1 So that he may fulfil his office of pastor diligently, the Parish Priest is to strive to know the faithful entrusted to his care. He is therefore to visit their families, sharing especially in their cares, anxieties and sorrows, comforting them in the Lord. If in certain matters they are found wanting, he is prudently to correct them. He is to help the sick and especially the dying with great charity, solicitously restoring them with the sacraments and commending their souls to God. He is to be especially diligent in seeking out the poor, the suffering, the lonely, those who are exiled from their homeland, and those burdened with special difficulties. He is to strive also to ensure that spouses and parents are sustained in the fulfilment of their proper duties, and to foster the growth of Christian life in the family. 2 The Parish Priest is to recognise and promote the specific role which the lay members of Christ's faithful have in the mission of the Church, fostering their associations which have religious purposes. He is to cooperate with his proper Bishop and with the presbyterium of the diocese. Moreover, he is to endeavour to ensure that the faithful are concerned for the community of the parish, that they feel themselves to be members both of the diocese and of the universal Church, and that they take part in and sustain works which promote this community. Appendix Three Dismissal From The Clerical State The following seven offences in canon law may warrant dismissal from the clerical state, depending on the circumstances and on imputability of the act. This penalty can only be handed down following a formal penal trial. Heresy or schism (canon 13642) Desecration of the Blessed Eucharist (canon 1367) Physical force used against the Roman Pontiff (canon 13701) Solicitation of a penitent under the pretext of confession (canon 1387) Attempted marriage (canon 13941) Concubinage or other scandalous sexual relationship (canon 13951) Other sexual offences, including abuse of minors (canon 13952) [1][1] Codex Iuris Canonici, auctoritate Ioannis Pauli PP. II promulgatus, 1983. In English translation, The Canon Law Society of Great Britain and Ireland, The Code of Canon Law: New Revised English Translation, HarperCollins Publishers, 1997. source: CCS
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