Readers may recall that at General Synod in July, John Ward asked a Question of the Archbishop of Canterbury, as reported fully here. This in turn followed from a previous Question asked in February, also reported here. The incidents to which reference is made in the questions occurred in September/October 2014 and in October/November 2013.
The guidance document to which the question refers has now been published: ARCHBISHOPS’ GUIDELINES ON THE IMPLEMENTATION OF “CHOOSING BISHOPS – THE EQUALITY ACT 2010 (REVISED)” (GS Misc 1044).
This document is dated March 2015, and as explained in its first section, it was revised following the passage of the women bishops legislation in 2014. Presumably therefore there was an earlier version of this guidance issued in 2013, shortly after the issue of GS Misc 1044 itself.
Pages 3 and 4 of this newly published guidance constitute a section entitled: The relevance of a candidate’s previous public statements on human sexuality.
This portion is copied in full below the fold, but you need to read the whole document to get the context. However, you will note that GS Misc 1044 itself contains no reference to this topic.
The relevance of a candidate’s previous public statements on human sexuality
14. The focus of the Legal Office note is the imposition of a requirement of one of the kinds described in paragraph 7. The imposition of such a requirement is a significant thing, its effect being completely to exclude from consideration those whose circumstances are inconsistent with the requirement. But, as noted above, if a requirement is not imposed the fact that a candidate falls into one or other of the two categories is to be ignored and may not be the subject of any further discussion or questioning.
15. It is possible that a further issue may arise in the course of the CNC’s deliberations which is distinct from the possible imposition of a requirement. That is whether, when considering whether the candidate can fulfil the fundamental calling of a bishop to be a ‘focus of unity’, the CNC can nonetheless lawfully take into account the content and manner of any public statements previously made by him or her about the Church’s traditional teaching on same-sex relations.
16. Taking a consideration of this kind into account is different from imposing a requirement. Rather, in terms of the Equality Act, it involves the application of a ‘criterion’, in the light of which (amongst other criteria) the decision on nomination would be made.
17. A discussion of this kind would not have involved indirect discrimination under the Equality Act, had the Act applied, even if in practice such a discussion might put a homosexual candidate at a disadvantage when compared with heterosexual candidates. The concept of ‘indirect discrimination’ under the Act does not extend to a situation in which a criterion is applied as a proportionate means of meeting a legitimate aim; and a criterion designed to assess how well a candidate would, if nominated, be able to fulfil a fundamental aspect of a bishop’s role would have passed that test.
18. It would accordingly be open to the CNC, in principle, to have a discussion of this kind, in an appropriate case. Were it to do so, then the criterion would need to be weighed alongside others. So it would be for each individual member of the CNC to decide how much weight to attach to it.
19. However, it would be essential that any discussion of this issue was confined to weighing the implications of the candidate’s previous public statements for his or her ability to act as a focus of unity, rather than taking account of the implications of his or her sexuality or status as a civil partner. The latter would involve taking account of irrelevant, and unlawful, considerations, since those matters have either to be addressed through the imposition of a requirement or left out of account altogether.
20. In addition, the mere fact that a candidate had publicly questioned the Church of England’s teaching on human sexuality, or indeed that of the Anglican Communion as articulated in Lambeth 1:10, would not be sufficient to raise any issue from this point of view: that is something that clergy are free to do. An issue could only arise as a result of the way in which that disagreement had been expressed.
21. Particular care would be needed in handling any considerations relating to the Anglican Communion. An adverse reaction in the Anglican Communion to the candidate’s appointment on account of his or her previous public statements could in principle be a relevant consideration in so far as it touched on the candidate’s ability to be a focus of unity in the Church of England– e.g. because it could fuel controversy within the Church of England of such a kind as to make it more difficult for the candidate to act as an effective focus of unity.
22. However, in practice considerable care needs to be taken in evaluating considerations relating to the Anglican Communion, where concerns about the candidate’s appointment may well be based at least as much on his or her sexuality or civil partner status as on the nature of his or her previous public statements.