Examination of Witnesses (Questions 40-52)|
QC, THE REVEREND
WEDNESDAY 18 DECEMBER 2002
40. We have also had a very good look at human
rights, have we not?
(Archdeacon of Malmesbury) Yes.
41. And we have brought this Measure within
the framework of human rights and we have Counsel's opinions which
say that it is fully in accord with human rights.
(Archdeacon of Malmesbury) Correct.
42. My third point is you may be aware that
the DTI is looking at employment conditions and there is a consultation
document from the Church, but all of the consultation with the
DTI deals with civil procedure and the balance of probabilities.
There is absolutely no prospect at all of the DTI coming out with
some extension of rights which might cover clergy which would
be based on the criminal standard, it would be a civil standard.
(Archdeacon of Malmesbury) That is correct.
43. I wonder whether we ought to look at the
history here. What has happened is that clergymen had in the past
very important rights, as referring to the parson's freehold.
By various mechanisms, some of them overt and some of them covert,
that has been very much reduced. Under this legislation I would
entirely agree that the bishop, should have significant powers
but, as Lord Judd said, those powers do mean that in that sense,
if we are talking in tribunal terms, the employer has a significantly
bigger role here than would be true in comparable cases. One of
the reasons I pressed the earlier point was that this is not parallel
with what happens in the world and the Dean of the Arches said,
whether we agree with her or not, the reason was that it was very
difficult for the Church to do it in that way although Lord Pilkington
pointed out that many parallel organisations were able to do it
in that way. The situation is that we do not have a parallel with
what happens in the world outside. What I am concerned about is
that the employer, having this greater degree of power and having
reduced the independence of the clergyman, which I think is a
sadness as a matter of fact but that is what we have done, we
are now proposing that he should have his position reduced still
further in these circumstances. I think Lord Campbell is right.
It does seem to me that for all kinds of reasons, not least the
position of the parson in the parish, that he should, in fact,
have to be arraigned in terms in which the case has got to be
proved beyond all reasonable doubt rather than the balance of
probabilities as agreed by a majority. I think both these things
are intolerable. The reason really is that it is wholly against
the history of the position of the Church of England which always
tried to get a balance between the power of the bishop, or in
this case the nexus of the committees that have now replaced the
bishop, and the power and independence of the clergyman. I think
this Committee would be quite wrong to allow the position of the
individual to be so reduced that it would be both contrary to
reasonable rights of establishment and his ability to defend his
independent position in the parish and contrary to what has historically
been the position of the Church of England clergymen. I think
it is wholly contrary both historically and traditionally to the
position of the priest.
(Miss Cameron) My Lord, can I just say that I suspect
that we may be losing sight to some extent of the process of laying
a complaint under this Measure because clause 10(2) deals with
the laying of a complaint before the bishop which has to be in
writing and 10(3) provides that it has to be accompanied by written
particulars of the misconduct and written evidence in support
of the complaint be sent to the bishop or archbishop, as the case
may be. When that has been received the bishop has to hand it
over to the registrar who has to see whether the person making
the complaint has a proper interest, which would get rid of the
malicious gossip, etc., and then has to decide whether there is
sufficient substance in the complaint to justify proceeding at
all. Then it goes through for consideration by the bishop, whether
conciliation and so forth can deal with the matter. If the bishop
forms a view that it really is serious and ought to go through,
there is then a formal investigation under clause 17 by the president
of the tribunals, that is the lawyer mentioned earlier, the head
of the structure, for the purpose of deciding whether there is
a case to answer. There are, in fact, two lawyers, the registrar
who looks at it in the first place and in the second place the
president of the tribunals who looks at it, a completely independent
lawyer who decides whether there is a case to answer, and it is
only if he finds that there is a case to answer that it then comes
before a tribunal. There is a huge analysis of it all before it
ever gets to the tribunal stage, which is why the Archdeacon and
the Bishop were saying that they are hopefulthey cannot
guarantee anything in life, none of us canthat the filtering
process which has been introduced here is to protect the clergy
all through. It is only if the president of tribunals decides
there is a case to answer that then he will set up an independent
tribunal, nothing to do with the diocese concerned, and they will
then have to consider it. They will then consider it as a disciplinary
tribunal looking at misconduct under the terms of this Measure
and that is professional misconduct. It is that which is analogous
to accountants, to doctors, to dentists, to the police, who have
recently gone on to the balance of probabilities; they serve the
public, they are prepared to stand up and be counted and be tested
by the balance of probabilities. The case which the Archdeacon
has been putting is that the clergy sitting beside me, three of
them, are all prepared to say, on behalf of their colleagues,
"We are prepared to be judged by this standard". If
those who are to be affected by the standard which they are asking
for in this Measure, supported by the Laity, are coming before
this Committee and asking for it, they are doing it because they
believe it is right.
44. Very good.
(Bishop of Winchester) I think the point that the
Dean of the Arches and Auditor has just made really is very important.
The Synodthis is a little bit of obvious historyhad
no sense that it was doing something unjust to the clergy in going
for the civil standard of proof. The Synod decided that the present
system which, as the Dean of the Arches has said, speaks of the
Assize Court was wholly unsuitable. Having made that decision
by which it was absolutely clear the rest follows, I do not think
the Synod, and certainly I and various studies or instructions
I have had, has any sense that going for a civil burden of proof
means that the thing is uncertain or amateur or whatever. I do
not think any of that comes into it. The bishop is not the employer.
I think the thing I would most want to say, through my Lord Chairman,
to Mr Gummer is I think the Synod was also seeking, as has been
made clear this afternoon, to hold clear the intention which ultimately
is the bishop's legitimate interest and proper interest in the
welfare and sustaining and well-being in a professional and spiritual
light of the clergy on the one hand, and the responsibility to
the public on the other. At that point that has to run through
the whole tribunal system too should cases reach that point. The
likelihood is that most complaints are of the "the vicar
was rude at my baby's baptism" sort. There are all kinds
of ways of dealing with this but they will be brought within the
Measure rather than left to the bishop's informal discretion.
The bishop will still be responsible for their management. A tiny
minority will reach the point of tribunal but even at that point
the overall intention, the needs of the cleric and the needs of
the public, is what I think underlies the present set of proposals.
45. I do not want to muddy the waters but what
I find difficult about these exchanges is that they could so easily
come from the pages of Trollope which is concerned entirely with
the clerical members of the Church of England. What we are looking
at is a Measure which is designed to enable that body of saintly
men and women to minister to the faithful in the parish. Nobody
has so far raised the question of how this looks to the complainant.
My preliminary question is will the complainant get any advice
as to how the system works and the likelihood of getting a decision?
If that is the case then it seems to me that that needs to be
taken into account when considering what is the appropriate burden
of proof. On the one hand we have a burden of proof which means
it is really very likely that this did happen so we must assume
that it did, and the other is this has quite clearly happened
and only somebody who is very unwise would think that it did not
happen. Then we come to what is likely to happen in the parish.
If the complainant believes that it is an exceedingly difficult
test and it will be in the end her word against his, as it were,
in a question of inappropriate conduct in a counselling session
then the social horrors of losing would make it very unlikely
that the case would be brought, I think. If we have this very
interesting, as it were, graded balance of probabilities as described
so eloquently in the never quoted passage of my noble Lord Chairman's
judgment, then the more serious the allegation the more stringent
must be the requirement of proof. It seems to me that that is
the nearest thing we can get to a proper balance between the interests
of the complainant and the interests of the clergyman and, therefore,
I feel that probably the Measure is right.
(Archdeacon of Malmesbury) Can I just say, my Lord
Chairman, that the complainant will find it much easier to lay
a complaint under this Measure than they would find it to lay
a complaint at the present moment in time. It is an incredibly
complex process to lay a complaint at the present moment in time
and the rules here run to pages of how it is done. All they have
got to do is just to write a very simple letter saying "I
am concerned about x". At that point they do not even have
to give the evidence because they will be asked "could they
please justify the cause of concern". It is envisaged in
a code of practice that, for example, if you had someone who had
difficulty with literacy that provision would be made for someone
to write the letter for them if they wish to make a complaint,
to enable them to be able to do it. It is envisaged that complainants
will be given guidance and help in how they will go about it.
If necessary, if they were illiterate, for example, or felt that
they had been offended against, they could explain that to someone
locally who would write that letter and send it in on their behalf.
I have every expectation that although this is not a complainant's
charter it undoubtedly makes it much, much easier for a complainant
to indicate their concern.
Chairman: Can I add a footnote to what Lord Elton
has just said and what the Archdeacon has just said. We are often
required to ensure that a procedure is fair to a defendant and
that, of course, is very important. But we have also said that,
yes, it has got to be fair to the defendant but it has got to
be fair to the plaintiff as well. I think underlying Lord Elton's
point is that we have got to be fair to the complainant in deciding
what the burden of proof should be. I do not know what the Committee
feels. But I hope we can deal next with the majority question,
the question whether a decision should be unanimous, which is
a relatively easy point.
Lord Judd: My Lord Chairman, I accept your ruling
on what we must do and I do not want to try your patience but
I did just wonder whether we might hear a word on the background
thinking to clause 26 because I am interested by this principle
that when the issue was being considered of prohibition or deposition
the grounds listed are in (a) and (b) and
Chairman: Sorry, Lord Judd, is that relating to
Lord Judd: I thought you were going to conclude the
proceedings, my Lord Chairman.
Chairman: No, no.
Lord Judd: I beg your pardon.
46. Before we get to clause 26 I think we ought
to deal with the other points on clause 18(3)(b), which is the
(Archdeacon of Malmesbury) I look forward to giving
Lord Judd guidance.
Lord Campbell of Alloway: I go along with the majority,
that is fair enough, but for the reasons I have givenI
have listened very carefully to what has been saidI find
absolutely no justification in all fairness for any of the views
that have been expressed. Therefore, I would stand firm in accordance
with your judgment in the House that really you will have to apply,
and it would probably be held so on judicial review, Clause 24
with criminal burden on (a) to (d) and civil burden on (e) and
(f). With respect to the Committee, you cannot get away from the
seriousness of (a) to (d) and the penalties, the types of commission
of offence under (a), and then say that any measure of justice
has been done, whatever the procedure may be. Procedure is no
safeguard for burden of proof.
Chairman: Can I just remind Lord Campbell that the
most recent authority is a case called B v. The Chief Constable
of Avon Constabulary. The question there arose under the new
procedure whereby an application had been made for a order. In
that case Lord Bingham said words to the effect: "This is
a civil proceeding and therefore the civil burden applies. But
sicne the case involves a very serious sexual allegation the civil
burden becomes indistinguishable from the criminal burden".
If I understand what the Archdeacon and the Dean of the Arches
were saying, the flexibility of the civil burden is one which
will enable one to apply what is basically a criminal burden in
the very serious cases but something which is much less than a
criminal burden in the less serious cases. It is really a matter
almost of common sense. It does not mean that you have to use
the words "criminal burden of proof".
Lord Judd: What some of us are concerned about is
although we are told that it will only be in extreme circumstances
and very rarely, the possibility exists that the outcome of the
proceedings might have an effect upon the individual which is
even greater than the effect on somebody who is found guilty in
criminal proceedings because their vocation will be taken from
them and their whole standing in society will be called into question.
Lord Pilkington of Oxenford: There is another burden
that underlies this. You are here not dealing with the Law Lords
but you are dealing with a tribunal that to a large extent is
an internal tribunal of the Church. I am not disputing that they
would behave with utter integrity but when our Lord Chairman talks,
he is talking about judges sitting in court and in this case you
are dealing with an internal tribunal. The citizen does not have
as many protections as his colleagues do who face much less serious
offences. When I sacked a teacher and faced an industrial tribunal
I did not take away their house or their job.
47. My Lord Chairman, can we not lose sight
of the point.
(Bishop of Winchester) I just wanted to say very briefly,
and this is partly in response to Lord Judd's earlier point, that
a tribunal of the diocese to the Synod in passing its legislation,
is in line with what lay before, which was a diocesan Court. The
tribunal has now gone quite outside to a provincial panel for
its membership and is not internal to the diocese and thereby
has removed this element of the internal and has met the kind
of concerns that Lord Pilkington is expressing. I am quite convinced
that that is the Synod's view.
Chairman: I think Lord Campbell has said that he
would not be too worried about a majority decisions, three out
of five. Is anybody worried about that?
48. I specifically raised this issue earlier.
I do not have a fixed view on it but along the same lines. It
has just been said, for example, that the more serious the charge
the closer the judgment must be to the criminal burden of proof.
I would like to know what the reasoning and thinking of the Synod
was for going down a majority view in the first instance when,
as I said before, the evidence or the pattern in the sister Churches
at the moment is not conclusive. I think I saw from the Scottish
Episcopal Church that it was a unanimous or majority vote. Given
the context in which you would be making those decisions, albeit
perhaps rarely, I would like to know the thinking as to why the
members of the tribunal would not be asked for a unanimous verdict
in the first place, particularly when the question of the composition
of the tribunal, to which I think Lord Pilkington has just alluded,
is different in character and nature from that of lay tribunals.
(Archdeacon of Malmesbury) My Lord, the present situation
is if you get to a Consistory Court, and that is extremely rare,
that you have a qualified judge as the Consistory Court's chairman
and you have four jurors for want of a better word, two clergy
and two laity, from a group, a panel, of 12 laity and 12 clergy
elected by the diocesan Synod of that diocese. They are chosen
by lots, the four of them, and they alone have the decision. The
chair, who is legally qualified, is not involved in making that
decision. We move then to a situation where each diocesan Synod
would nominate two lay and two clergy to a provincial panel. When
a tribunal is required the only people who may not under any circumstances
sit on that panel are the members from the diocese concerned.
The defendant has the right to object to anyone who is nominated
for that panel that they feel are not sufficiently independent.
They can complain about all of them. There are steps, first of
all, to make sure that the panel of five, which includes a legally
qualified chair person, are all people that the defendant is satisfied
are independent. Then the five hear the case under the chairmanship
of the legally qualified chair and the legally qualified chair
is one of those who helps to make the decision, which is completely
new. On that basis the original intent was to have a panel of
three and those who felt concern about this approached me and
said they were less than happy about that. It was the suggestion
of those who had a concern in this areatheir suggestion,
not minethat they would be happy with a panel of five and
a majority but they would not be happy with a panel of three and
a majority. We were very content to change it to a panel of five.
There was no opposition to that in the General Synod, they felt
the balance was right.
Chairman: As a footnote, one can say that even in
criminal cases we no longer insist on a unanimous verdict of the
Mr Marsden: That is true, my Lord Chairman, you do
not insist upon it but you ask in the first instance, if I am
correct, whether the jury could come to a unanimous decision and
only subsequently do you accept a majority verdict. The point
that I am making is there is a slight difference of emphasis to
the whole process where a tribunal is assuming that essentially
a majority verdict will do and that effectively means if you are
doing some sort of numbers game you have got to get three out
of five members of the tribunal to agree. I think that is a rather
different perspective from a situation where people go into a
tribunal assuming that they will make their best endeavours that
all five of them should agree and only if they do not agree do
they then subsequently go to the second process. What I am concerned
about, and I am afraid the Archdeacon's reply has not convinced
me, is that again, given all the draconian aspects we are talking
about, the proposal does not sufficiently protect the position
of the individual before that tribunal.
Lord Pilkington of Oxenford: Talking of numbers,
my Lord Chairman, we have lost our quorum.
Chairman: I know we have. I am afraid we will have
to come back again. I think I am right in saying that in Scotland
you do not even need 10 out of 12, I think I am right in saying
a majority verdict is sufficient.
49. Curiously, according to what we have been
given, my Lord Chairman, the Scottish Episcopal Church goes for
a unanimous verdict in the first place.
(Archdeacon of Malmesbury) No, it does not. It can
go for either. It would appear that the actual tribunal decides
itself which way it is going to go.
Chairman: I fear that we cannot continue any longer.
50. Can I just raise a very small point which
I should have asked before. It is in clause 8(2) where there is
a reference to a minister licensed to serve in a diocese. I do
not think I need to declare an interest but I am what is known
in the Diocese of Oxford as a licensed lay minister. I would draw
to the attention of the Church the possible difficulty of the
language there because I am not a clerk in Holy O rders. I think
you need a better definition there.
(Archdeacon of Malmesbury) But it is there in clause
8(1) at the very beginning "archbishop, bishop, priest or
deacon". They are the only people being referred to.
(The Reverend Canon Dexter) You are quite safe.
(Archdeacon of Malmesbury) You cannot squeeze into
this Measure like that.
Lord Campbell of Alloway: Could I raise two very
51. I think not, Lord Campbell, we are not quorate.
We have got to come back. It is a question of when we are going
to come back. Before we discuss that, may we at least thank you
very much indeed for all the explanations you have given to us
today and hope that you will be able to come back again. I think
there is not much more that is contentious.
(Archdeacon of Malmesbury) I am looking forward to
giving Lord Judd his answer.
52. You know what I am going to ask, do you?
(Archdeacon of Malmesbury) You have already told us.
Chairman: We need a date in February. I imagine we
had better fix that date in the usual way. Thank you.