Examination of Witnesses (Questions 20-39)|
QC, THE REVEREND
WEDNESDAY 18 DECEMBER 2002
20. I have a very brief point on 7. 7, as we
know, excludes from the proceedings under the Measure any misconduct
involving doctrine, ritual and ceremonial. We also know that the
Measure is not intended to deal with a complaint involving a criminal
offence, sexual offence or something like that. Would it be helpful
for the reader to exclude expressly complaints involving criminal
acts as 7(2) expressly excludes complaints which involve matters
of doctrine, ritual or ceremonial? Would it be better to add criminal
(Archdeacon of Malmesbury) Section 7 is dealing with
moving on from the 1963 Measure where the items excluded were
also part of the exercise, and therefore it is seeking to clarify
that point in a Measure which is dealing with professional discipline.
Criminal convictions arise later in the Measure at 33 and 31 and
are clearly stated there, as they were in the original Measure,
and therefore I believe they are clearly stated and therefore
21. I am not disputing the Measure as totally
inappropriate to criminal matters, I am just wondering whether
it is easier for the reader, who perhaps will not know as much
as we do about it, if criminal acts were expressly mentioned in
(Archdeacon of Malmesbury) It has not been a problem
for the last 39 years.
22. I have got a small point on 8. 8(1) deals
with disciplinary proceedings against any archbishop, bishop,
priest or deacon and then we find under sub-paragraph (d) that
"conduct unbecoming" is included as misconduct. We turn
down to (3) and we find that: "No proceedings in respect
of unbecoming conduct should be taken in respect of lawful political
opinions or activities of any bishop, priest or deacon",
but the archbishop is not protected.
(Archdeacon of Malmesbury) I think I will ask Mr Slack
to answer that.
(Mr Slack) Before the Archbishop gets over-concerned
about the point, Chairman, I have to say I think the intention
when the Measure was amended by the addition of this provision
was to replicate in substance the proviso to Section 14 (1) of
the Ecclesiastical Jurisdiction Measure 1963 which did in turn
confer the same protection on an archbishop as on a bishop. I
think I would want to argue that this the effect of this provision,
notwithstanding the fact that unlike Clause 14 (1) this sub-clause
does not refer to archbishops expressly. I would want to say firstly
that it could well be argued that express provision is in fact
unnecessary to confer that protection because it would be inconsistent
with the Human Rights Act for someone to be subjected to disciplinary
proceedings on account of their political beliefs. Given that
this provision is included I think I would also want to argue
that it ought to be construed generously, that in other words
the bishop ought to be understood to include the archbishop, on
the basis that Section 3 of the Human Rights Act requires primary
legislation, which this is of course, to be read in a way such
as to be compatible with Convention rights and there is a right
to freedom of expression of political beliefs.
23. Lord Brightman has scored a bullseye there
because our own legal adviser also noticed that there was no reference
to archbishop. I would have thought it more sensible to include
archbishop there if we can; maybe we cannot.
(Archdeacon of Malmesbury) Our problem is it was an
amendment on the floor of the Synod.
24. To exclude the archbishops?
(Archdeacon of Malmesbury) No, the actual wording
there is an amendment on the floor of the Synod.
Chairman: I do not quite know how we deal with it
but it is a point. Mr Taylor has pointed out that we have gone
back from 9 to 7. That is entirely my fault.
25. Thank you for that. We are still on clause
8 to which Lord Brightman took us and (c) "neglect or inefficiency".
Will there be more attempts made to define those rather vague
words in any greater detail? That is the first of two very brief
questions. The second one relates to the clause we were on originally,
clause 9, next to it, which Sheila Cameron talked about where
it is the institution of proceedings which should be taken within
12 months but that can be waived if the president of tribunals
considers they have good reason, etcetera, in the third paragraph
of clause 9. Where that particular extension is included, should
it not also include the question of whether a trial can be fair
in these circumstances to clarify that particular position? So
there are two things, the neglect and inefficiency definition
and why can we not include a reference to the fairness in those
circumstances of a late submission?
(Miss Cameron) My Lord, dealing with the first point
about clause 8 (c) neglect or inefficiencyit comes back
to this point about protecting the complainant because there are
things which may occur in a parish which one does not want to
define too tightly because it would mean then that a complainant
going to the bishop would be told, "I cannot take up this
complaint because it is not within the definition in the Measure."
I have been trying to think of some simple examples of things
which I am afraid do occur. For example, there is a duty on a
clergyman to visit the sick or the dying. If the clergyman or
clergy woman ignores relatives' calls for a minister to come and
turns up when he or she thinks it is convenient, and finds the
person has died, then one could ask has that person neglected
his or her duty. "No," they would say, "I have
not neglected my duty, I was just a little late getting there."
Is that inefficient? If someone is sick or dying and you get these
calls, you have to have a very good reason for not responding.
Another example would be a young couple rushing after work for
an appointment for marriage preparation and the clergy person
turns up an hour and a half late and they have steamed along very
rapidly from work and again the answer would be, "Well, I
did not neglect my duty, I turned up, I was an hour and a half
late." If you get examples of that, that is inefficiency
and you could get all sorts of examples. Those are just two that
occur to me of simple examples of things that happen in life,
sadly, and if you close the door on the ordinary member of the
public or several of them who have suffered in this way their
confidence in the clergy is not destroyed but reduced and this
is why the Church of England says in order to prevent thatI
am speaking as a lay person nowwe want to have confidence
in our clergy and we want to feel they are keeping up to a good
professional standard. That is the first thing.
26. Waiving the one year limit?
(Miss Cameron) 9(2)this Measure, my Lord, has
got a lot of lawyers mentioned in it and although the General
Synod is not very keen on lawyers, when it comes to the crunch
they tend to shelter behind lawyers and the president of tribunals
will be a senior lawyer who is appointed and is overseeing most
of this structure. It is he or she who appoints people, etcetera,
so there would have to be very special cases, good reason, and
it can be seen that Clause 9, the second proviso, provides that
the president may, if he considers there was good reason why the
complainant did not institute proceedings at an early date, after
consultation with the complainant and the respondent, give his
written permission for the proceedings to go ahead. You say this
is a late application. I want your views on it, and just as any
judge, and my Lord Chairman has had many years' experience of
this, you have to deal with an application, you have to apply
the rules of natural justice and let people be heard and then
you have the job of deciding is it fair to let this go ahead or
to say you are out of time. That is a judicial process which the
president of tribunals would have to carry out.
David Taylor: That point was raised by the English
Clergy Association which was the body to which Lord Campbell of
Alloway referred and which the Bishop of Winchester was not clear
about being included in an earlier point.
Lord Pilkington of Oxenford
27. Could I ask something related to this. The
thing that puzzles me in the sort of inefficiency you described
of not visiting the sick or the dying, in the normal course of
occupation you would issue a warning and then you would issue
a second warning and at no point in this Measure does it include
the thing which is absolutely rooted in normal employment legislation,
ie, the bishop, the archbishop, the Archdeacon or someone would
issue a warning to the priest in question saying you have not
visited the sick and only after the second warning, which is the
protection that people have because they might have been sick
or their wife might have been ill, and in this case you are dealing
with tribunals before you have followed the normal process. Reassure
me on that.
(Miss Cameron) I will do my best to offer reassurance.
The first thing is that this question of going to a tribunal will
only occur after, in fact, a long process and a complainant working
up enough courage to make a complaint to the bishop, so the scenario
that Lord Pilkington was putting is the most likely one, that
there will be a history of this and a history of warnings, of
little meetings or somebody being sent by the bishop to speak
to the clergy person concerned before we get to this stage.
28. Could I ask why you did not put that in
(Miss Cameron) You do not need to, my Lord, because
those are preliminaries. This is dealing with the stage
29. This is contrary to employer legislation.
I have written more warnings in my life than I have earned pennies.
Why is it the bishop is exempted from delivering warnings?
(Miss Cameron) The other point which is completely
new in this Measure, and I do not want to go too speedily on this
because I think my Lord Chairman is guiding the Committee, what
is absolutely new in this Measure which did not appear in the
1963 Measure and is relevant to Lord Pilkington's question is
the conciliation provision in clause 15 because that is a very
important part of the process before the president of the tribunals
is asked to set up any tribunal at all, that the bishop may determine
that an attempt had been made to bring about conciliation between
the complainant and the clergy person concerned.
Chairman: We will hear you, Bishop, but afterwards
could we move on while we are still reasonably fresh to clauses
17 and 18.
Lord Campbell of Alloway: I want something on 12.
30. Is it the wish of the Committee that we
should actually go through the Measure clause by clause? We do
need to get to what I think most people are interested in, which
is clause 18, and we need to get to it while we are still fresh.
Would the Bishop like to add anything?
(Bishop of Winchester) I can do so simply by pointing
to the character of clause 12 and the clauses following, that
for the vast majority of complaints, which at the moment are dealt
with informally, considerably greater protection is given by dealing
with them formally. I should anticipate that the vast majority
of complaintsthis is also in response to Baroness Rendellwill
get as far as 14 and perhaps 15. That seems to me to be the answer
to Lord Pilkington's question.
Mr Gummer: Can I just ask one question as I have
to particularly look after those who may not be members of the
Church of England. I do find this issue really very difficult
because if the argument is that most things are done informally
and sorted out in a proper way, then that is one thing, but this
is not the informal mechanism we have here but the legal mechanism.
I must say, and I think Lord Pilkington is on to a very important
point, under the legal mechanism which protects every other person
in our society it is not possible to behave in this particular
way. I know that the Bishop and others have said that people will
not behave in this way but under this system it is perfectly possible
to demand a tribunal before there has been a first and second
warning of the kind which is necessary in the legal protection
of other people. I find it very difficult to understand this.
If the Church of England had come before us and said "Bishops
have a particular relationship with their clergy and this is how
we do things", I must say I, for one, would be rather enthusiastic
about it. I think that the first paragraph is far too weak and
the kind of bishop presented in the first paragraph is not a bishop
known to history, this is a new kind of bishop, this is not the
apostolic succession type of bishop. That is not the issue of
the public, the public problem is this: if we say in this document
something which gives to the clergyman less protection than anybody
else then I do find that rather difficult. I would therefore ask
why it is that the Church of England has not, as in so many other
cases, followed at least to this point what the general rules
are, which is to say before a complaint can go to a tribunal there
has to be a clear and public first and second warning as would
happen in any other profession, if you are treating being a clergyman
as a profession in that sense?
31. Who is going to answer that?
(The Reverend Canon Dexter) As a parish priest I do
not believe that the relationship I have with my diocesan bishop
is one in which he gives me warnings. If I am known to have erred
in some pastoral matter I believe that my diocesan bishop would
expect to handle that pastorally and I would expect it to be handled
pastorally. If a matter persists, or I persist in my misdemeanour,
then we can go into a hard case process which would take a very
long time and considerable obduracy on my part to reach a tribunal.
As Members of the Committee will know from the documentation there
is a whole process of a sieve where I can be called to meet the
bishop or his advisers, I can be given a warning, admonition,
the bishop can say "No further action". There are very
many safeguards before we could get to the position of a tribunal.
I am quite convinced, my Lord, that there will be very few tribunal
cases and most of them will be through the stubbornness of the
clergy person concerned.
32. Can I make one point which is not clear.
The nature of the clergy has changed. We have licensed clergy,
we have freehold clergy and we have employed clergy. The licensed
clergy are not covered by the 1963 Measure. This will actually
cover licensed clergy, will it not?
(The Reverend Canon Dexter) The status of licensed
clergy will be strengthened by this Measure in that their licence
cannot be removed by any other means than the process envisaged
in the Measure for discipline.
33. This Measure is there to protect the interests
of a particular section of clergy, licensed clergy?
(The Reverend Canon Dexter) It is.
(Archdeacon of Malmesbury) Section 8(2) is quite specific,
that they may not be disciplined other than by this procedure,
which is a vast improvement.
Lord Pilkington of Oxenford: Can I say, my Lord Chairman,
I am not doing this in any critical sense but I am doing it in
a protective sense because hovering over a formal statutory body
is judicial review and to guard against judicial review the business
of a formal warning and a reply, it might seem against pastoral
things but it would save an endless amount of trouble. I would
have thought in this Measure, without trespassing on anything,
that just a letter, a reply, because the person then puts his
defence, would stop because you will get judicial reviews on this,
it is inevitable, and they are very wearing for the Church and
any employer. What I am suggesting is in a constructive not a
critical way. I actually think this hole will land you in trouble
34. I think we want to get on to clauses 17
(Miss Cameron) I just wanted to say one thing very,
very briefly, my Lord, if I may. That is, to include a provision
requiring warnings in all cases would, in our submission, be totally
inappropriate because there is going to be a range of seriousness.
Do you say to the clergyman who is acting improperly with a parishioner
"I warn you about this", or when a complaint is made
about the impropriety does the bishop have to take it seriously
and take the complaint seriously? I agree there is a difference
between that and my little example about turning up late and that
is demonstrating the range of potential activities. At the lesser
end are those, as the Bishop of Winchester said, covered by the
range of options in clause 12. On the more serious ones you could
not possibly put a warning in each case, it would make the Church
a laughing stock.
Lord Pilkington of Oxenford: In other cases where
people are in pastoral professions where sexual relationships
are concerned you have to do that. In other words, what you are
claiming is difficult is what people in schools and in social
services have to do. That is the point I am making.
Chairman: Who is going to start us off first on clause
18? If we can take the three points in order, first as to the
standard of proof. I do not know whether anybody is going to argue
that the criminal standard should be retained. For the reasons
that you have set out you recommend the civil standard. Is anybody
worried about that?
Lord Campbell of Alloway: Yes. I think it is an incredible
provision. If you look at the types of penalty in clause 24: prohibition
for life; limited prohibition; removal from office; do not bother
about (e) and (f), which are injunction and rebuke. The others
kill the life of the man and, therefore, in those circumstances
the complaint of misconduct must be proven beyond all reasonable
doubt under the criminal burden. I have read the literature that
has been produced that says that Employment Tribunals do this
and Employment Tribunals do that but it is not analogous at all.
Here you have got the whole life of the man with the whole of
his future ahead. It is a very serious matter. Not only that,
if you go to the Bar Council I think I am right in saying that
any serious offence has to be proved beyond all reasonable doubt
but if it is something that is not so serious then it is the civil
burden. For doctors, I seem to remember hearing, you have to prove
the misconduct on a criminal burden of proof. I think it is incredible
that these men of the Church should be subjected to what I regard
as a total system of injustice. I cannot imagine how any sane
Synod, any sane committee, could have come to a conclusion which
is so unjust. Personally, on this ground alone I would ask that
further consideration of this Measure be deferred and that we
come back again another day. I personally will not accept this.
35. I think the Archdeacon must deal with the
general question as to why the civil burden was chosen rather
than the criminal burden.
(Archdeacon of Malmesbury) The core of it I am going
to ask the Dean of the Arches to do. We did a very detailed survey.
We wanted to learn from other practice. We discovered, as the
tables you have received show you, that the civil standard is
almost universally used. In our sister Churches and in our sister
Anglican provinces that is the norm. We had to consider whether
there were grounds to suggest that the clergy of the Church of
England should be treated in a very special category separate
from all others which required standards of protection which others
do not experience, including the congregations that they serve.
I think the Dean of the Arches is the right person to give you
a more detailed answer.
(Miss Cameron) I am not sure about that, Archdeacon,
I think it is a very clear answer that you have given. I think
the first point, my Lord, is that a disciplinary tribunal is not
a criminal court. The 1963 Measure talked about a Court of Assize
and, of course, that has been replaced with the Crown Court. The
whole structure was expecting charges to be presented like an
indictment in a criminal court and criminal procedure to be followed,
and that is still on the statute book. That is what we are trying
to replace by a disciplinary tribunal leaving criminal charges
to be dealt with by the criminal courts and to have a tribunal
which is dealing with professional standards. The chart which
we put in as supplementary material, my Lord, deals with, I think,
10 or 11 other professions and shows that a substantial number
of them apply the civil standard already. My Lord, Lord Campbell,
referred to the doctors. It is true that there is nothing in their
legislation or rules requiring the criminal standard as far as
I have seen but, in practice, they are advised to use it. I understand
that the new legislation, the Health Act 1999, which is applying
to doctors, nurses, midwives and people in the Health Service,
gives a power to the Secretary of State to intervene in regulatory
matters. It remains to be seen whether the Secretary of State
thinks it is necessary to intervene. There has been, and I think,
my Lord, you and Members of the Committee will be aware of this,
some public concern about professional medical standards because
there have been some horror cases in the last few years. The real
question, as the Archdeacon has said, is are the clergy to stand
back and, notwithstanding that we are prepared to recognise that
we are now 40 years on and that we want to move away from the
concept of a Court of Assize to a disciplinary body dealing with
professional bodies, still apply a criminal standard as though
it were to be seen as a criminal court? The standard which is
set, and has been set by the House of Lords in 1996, and we handed
out a little note about this, makes it quite clear that a civil
tribunal, which is what a disciplinary tribunal is, has to look
at the matters, the allegations before it. We have already discussed
this evening the range of possible seriousness of charges. The
more serious the allegation the less likely it is that the event
occurred and hence the stronger should be the evidence before
the court concludes that the allegation is established on the
balance of probabilities. That is the guidance under which all
tribunals are operating in this country. So far, as far as I am
aware, it has not created any difficulty. There is an evenness
about it. What would be the message to say that clergy are not
prepared to stand up like members of other professions and have
their tribunals test them on the same standards that apply to
other professions? That is something which was debated at great
length. I think it came up at least twice, if not three times,
in different debates in the Synod. Members of the House of Laity
and, to be very fair, members of the House of Clergy stood up
and said "We are prepared to be tested". Of course there
are some who are not happy about that. Many members of the House
of Laity said "We must have the clergy prepared to be tested
in the same way as members of the public".
Chairman: I do want to ask Lord Laming to speak next.
But before he does so I have to declare an interest as having
been a party to the decision you mention. The thing that annoys
me is that what Lord Nicholls said in that case is always quoted
and what I said, even though I said exactly the same, is not.
Lord Laming: Sorry about the voice, my Lord Chairman.
I am not a lawyer but I am familiar with a lot of discipline proceedings
of this kind and I do think this strikes the right balance. I
support what the Archdeacon said at the beginning. Criminal proceedings
should be dealt with within the criminal law to criminal standards.
Civil law should apply to civil proceedings. If I have a concern
it is not about that side of it, it is about the difficulty that
people have to make the complaints. I think this should be applied
in a way that enables complainants to have the right kind of support.
Although I would go along with the Archdeacon's claim that the
clergy may be a bunch of good people, we should not take that
necessarily at face value but should enable people who want to
make complaints to be properly supported. I think that the standard
set out here is absolutely the right standard.
Lord Judd: I am very glad that Lord Campbell has
made a stand, as it were, on this point. I am not quite sure I
would go quite as far as he is going, it is very much up to the
Synod to decide how it wants to go forward. I think the issue
is immensely important. Can I just make three points as to why
I think it is important. First of all I think there is a trend
in this country, and I am sorry to see the Church following it,
away from something which I always see as fundamental to justice,
which is somebody is innocent until they are proven guilty. I
think this presumption is being eroded. I am afraid that this
is part of that change of culture. The second point, and that
is why I raised the point about clause nine because there is a
relationship, is that the Church is judge and everything in its
own case here, there is no independent tribunal and, therefore,
it seems to me to be all the more important that the balance should
lie very firmly as it traditionally has lain. The third point
that I make is that I think if you look at it just in the broadest
context, I have listened very carefully to the case about wanting
to take it away from the concepts of comparison with criminal
law but the point was also made, and has been made rather forcefully,
that it is also the process and the culture elsewhere. In tribunals
elsewhere, apart from the fact that very often they are independent,
it may be terribly grave but I would suggest that even if there
is a negative finding there is a greater possibility for the person
concerned to re-establish their life in some other walk of life
and so on and make a new life. This person has a vocation. He
may be removed from the priesthood if the proof of evidence is
found against him. It seems to me that this is a very serious
step indeed and, therefore, to move into this really rather subjective
as distinct from rigorous approach that there has been in the
past raises some very profound questions.
Chairman: I think there is a simple answer to the
point on presumption. The cleric will still be innocent until
he is proved guilty. The question is not of presumption, it is
as to the standard of proof to enable you to get ot that point
. The presumption is not changed, whether it be the criminal standard
or the civil standard.
Lord Hardy of Wath
36. My Lord Chairman, I have not spoken before
but I have two points that I think are related. First, I do hope
that it is well understood that although it may not be a criminal
court, the tribunal can effect penalties which may be as devastating
to the individual as a criminal court's would. The point I want
to make is this: we must be impressed by the size of the majorities
in the Synod but although 200 in the House of Clergy voted in
favour of the Measure and they could see, as I can see, certain
advances and improvements in it, 23 did not. It might be useful
if we were told what the particular arguments were of the 23.
Was it about this aspect of the matter or was it about the fact
that they feared that there could be an injustice given that clergy
today face many problems that their predecessors 50 or 100 years
did not? If you have a clergyman in the Lincolnshire Wolds in
the winter where it is hilly and people get snowed up and he is
looking after six parishes which might cover 50 square miles and
someone expects him to visit someone at death's door in five minutes'
time in a snow storm and he is not there because his car has broken
down, because he has not got all that big a stipend to run a car,
they can complain and then we see, according to the briefing we
have had, that someone can come along with a malicious and frivolous
complaint which can be dismissed and then we find that complainant
can appeal, although the terms of that right to complain I cannot
find in this particular document. If we could find out what the
particular reasons were for those members of the clergy who were
opposed I think we may well be assisted and able to make much
more rapid progress.
(Archdeacon of Malmesbury) I cannot tell you even
who the 23 were.
37. I do not want their names.
(Archdeacon of Malmesbury) I cannot tell you what
their particular reasons were because at that point they were
not declared. What I can say to you is that for the General Synod,
even in the House of Clergy to achieve a 90 per cent majority
is nearly a miracle in its own right. The figures are astonishingly
high. Can I just deal with one issue from Lord Judd. I think he
was a little less than fair and all my lawyer friends will be
quite upset at the suggestion that the civil standard of proof
has less rigour about it in being applied. I do not think that
civil jurisdiction would recognise the truth of that.
38. I suggested there was a danger.
(Archdeacon of Malmesbury) Fine. All right. Can I
also just make the point that you quite rightly and properly referred
to the most severe of the penalties and the most severe of the
penalties are only ever going to be used relatively rarely in
very serious cases. My own experience would be that on the overwhelming
majority of occasions on which that is used it is because someone
has been arraigned in the criminal court and found guilty of a
serious crime and it follows on from that, something like child
abuse or murder or something of that sort. In fact, I cannot think
of many situations where a prohibition for life would even be
considered by the Church to be appropriate for less than that
degree of seriousness.
Mr Marsden: I do want to come back on that point
and I want to reinforce the point that Lord Judd made and, indeed,
the point that Lord Hardy made because, for example, it is not
just a question of clergy today facing geographical problems that
might lead to some of these charges, the truth of the matter is,
as we have discussed on a number of occasions, the clergy today
face a whole potential range of allegations in terms of sexual
abuse and other things that people culturally would never have
dreamt would happen 40 or 50 years ago. That certainly would come
within the purview of this process. If I may say so, it is all
very well for the Archdeacon to say that these full penalties
would only be exercised on particularly severe occasions but it
is worth remembering that this penalty of deprivation is a penalty
of deprivation that is visited not just upon the clergyman or
clergy woman but upon their families as well because in most cases
they are likely to be deprived of their house and what goes with
it, as well as the issue of whether they can rebuild their lives
and all the rest of it. I do think that it is appropriate in those
circumstances at least to reflect further on whether a civil burden
of proof is appropriate. Forgive me for introducing this other
point but it is related. Certainly I would like to hear a view
from a Synod representative as to why it was that they did not
consider it appropriate to at least consider in the first instance
that the decision of any tribunal should be a unanimous decision
rather than a majority one. That is an issue on which submissions
that have been given to us are not conclusive, certainly as far
as the various Churches are concerned. I put that marker up either
at this point or subsequently if we wish to have a further discussion
Chairman: We have not really got to that point yet,
that is sub-paragraph (b). Do you want to ask about the civil
39. My Lord, as I understand the whole thrust
of this particular Measure we are seeking, as far as we can, to
ally ourselves to Employment Tribunals, is that not the case?
(Archdeacon of Malmesbury) We hope to learn from best
practice of others, we do not believe that we have all the wisdom
ourselves. Can I just remind you that professional bodies do have
the right to so act within their profession, that those subject
to discipline lose their job and very often that means they lose
a lot else at the same time. Again, that only operates in a profession
at the most extreme. I would have thought sexual abuse was probably
a criminal offence that would be dealt with in the Crown Court.