Examination of Witnesses (Questions 60-79)|
QC, THE REVEREND
WEDNESDAY 12 FEBRUARY 2003
60. For all intents and purposes there is nothing
before 1963 which could apply practically.
(Archdeacon of Malmesbury) Yes.
61. Anything else now on 26? Anything else until
we come to 30, proceedings in secular courts? This is where ordinary
criminal offences have been committed and they are dealt with,
I understand, in the ordinary way.
(Archdeacon of Malmesbury) It has always been the
situation in the Church of England that if it is a criminal offence
under the secular jurisdiction then it must be determined at that
level and that the result of that determination will be sufficient
of itself to determine whether the offence has occurred.
62. Am I right in thinking that they are liable
to removal without further proceedings but it is not essential?
(Archdeacon of Malmesbury) It is only liable. If you
go to clause 2 it is quite clear from the wording there that the
bishop may on advice and even then he has to consult about three
times before he does, but he does not have to. It simply creates
the possibility, should that be needed.
63. Moving on, does anybody have anything under
clause 32, or 33, duty to disclose criminal convictions and arrests?
Then the duty to disclose divorce and separation orders, under
the next section of the Measure, is really tying in this Measure
with the Ecclesiastical Jurisdiction Measure so as to make the
two run together.
(Archdeacon of Malmesbury) You have to understand,
my Lord Chairman, that the 1963 Measure did not only deal with
discipline, it also set up the basis of our faculty legislation
and if we had repealed the 1963 Measure here, we would have no
meaningful basis of faculty legislation. Certain things are still
required, the faculty legislation is still needed and therefore
this is seeking to ensure that only those parts of the 1963 Measure
which need to be, are put right.
64. As I understand it, just putting words into
your mouth, because for this Measure you were really carving out
from the 1963 Act those provisions which relate to discipline.
(Archdeacon of Malmesbury) Correct.
Chairman: I think 36 might be controversial. I do
not know. Does anybody have any questions on suspension? It is
quite an important point really. Does anybody have any doubts
Lord Williams of Elvel: I have a slight doubt about
(1)(b). If somebody is arrested on suspicion he then can be suspended,
as I understand it. I thought that simple arrest on suspicion
was not really sufficient to suspend anybody from anything whatsoever.
Lord Laming: It would make it consistent with many
other documents of this kind. Suspension is not in any way to
be taken as an indication of guilt. It is to be fair to all parties.
65. Let our archdeacon answer it.
(Archdeacon of Malmesbury) I am making the assumption
that everyone accepts that there are situations where suspension
is appropriate. The issue is when to apply the suspension. Under
the 1963 Measure, which is currently in existence, it does not
occur until a very late stage in the proceedings. I would have
to say that more often than not, when you hear that a cleric has
been suspended, they have not actually been suspended, they have
agreed with the bishop that they will willingly stand down because
they see the good sense of keeping their head down for the moment
and that is what is actually happening. I have had occasion in
the last few weeksand I am not saying which diocese it
was from, to offer advice on a priest who has been culled as one
of the 7,000 on child pornography and has been taken to a police
station and has been arrested on suspicion and has then been police
bailed for three months until the middle of March while they sort
it out. Now that creates a really quite difficult sort of situation.
In fact what happened there was that the archdeacon, on behalf
of the bishop, went to see him, we made sure he had a friend with
him who could advise him and he said he would do whatever was
wise. In fact it was wise, in the particular situation in which
he was, to remove him physically from that situation for his own
safety. He has done that voluntarily. He has signed a document
saying that until he goes back to see the police, he will place
himself under the bishop's guidance and accept the guidance he
gives. That is all we can do at the moment. If you look at the
code of practice which was illustrative, the intention is that
ideally suspensions anyway would be a voluntary and agreed position
between bishop and cleric. Clearly there will be occasions where
the cleric does not see why they should and there will be the
odd occasion where the cleric thinks that even to be suspended
or agree to it would imply something about the situation. If in
that situation, either for the cleric's safety and good, or for
the Church's good, it is deemed right, then there is a very clearly
controlled suspension procedure which can only last for three
months at a time, for which the cleric invariably has an appeal
every three months if it goes on. There is no "you're suspended"
and it just goes on and on and on. Every three months it has to
be reconsidered, every three months the cleric will have the right
to challenge it through a neutral authority outside of the diocese.
We are trying to build in some very real rights for the cleric,
but equally to enable us to suspend in a few occasionsand
it is only a fewwhere it is appropriate to do so and where
a common agreement between cleric and bishop cannot be achieved.
66. I wonder whether the bishop might like to
add something on the need for a power of suspension and how it
(Bishop of Winchester) I think the point the archdeacon
just made is important; and another thing which is worth pointing
out is that, as at a number of other points in this Measure, it
is bringing something out of the informal into the formal, out
of the informal into the laid down, which the Synod has believed
is right both for the cleric concerned and for the Church and
for the bishop. The whole thing at the minute, until a very late
point in the EJM procedure, is not open to the Church at all.
There are also circumstancesI am thinking of the first
of these, (a), rather than the secondwhere sometimes, even
in the most blatant circumstances, clergy determine that they
are going to brazen the thing out. I think of circumstances where
I have been party in the past to making what is legally an informal
arrangement that a man should stop work straightaway, even though
his agreed resignation will not take place for three or six months,
to enable stipend and housing to be held for him and his wife,
but he may be very publicly known to have gone off with somebody
else and to be living with her. In such a situation, and in this
case a complaint would have been made and so forth, and the "provided
that" at the end of (1) makes clear when this can operate,
if a man or a woman said to the bishop "Bother that. I'm
going to keep working" and actually he was widely known in
the local and possibly the national press to be living with a
woman who was not his wife or she with a man who was not her husband,
it seems to me it would be essential for the Church's integrity
that such a power should exist, properly hedged around, rather
than working informally; and with the stages of review, of appeal,
which are set out in the Measure. That is the thinking behind
Mr Gummer: I think this is a parallel but different
issue from that which we discussed in the Churchwardens Measure.
I think the difference makes it very much more acceptable. I remember
we were very concerned that the church wardens should be treated
in a way on suspicion which was unacceptable. In fact the Church
of England decided to change that. In this case it seems to me
perfectly right, because it is couched about with two very important
caveats. First of all, there is a proper guideline as to when
this might be suitable. Second, there is a proper appeal procedure
and indeed there is also the point about the three months and
then a return to the issue. This is a properly balanced occasion.
I hate the concept of acting against somebody who is in some sense
under suspicion rather than has been proved to be guilty of something,
because we all know that is one of the difficulties we have, and
particularly in the sort of press we have. People are condemned
long before anybody has been able to put the alternative case.
I start off by being concerned about any such provision. It does
seem to me that the Church of England has been very wise in the
balance it has here and I would have thought the Committee should
not have worried on this particular point.
Lord Campbell of Alloway: For the sake of the record,
may I say that I agree with everything John Gummer has said. I
wanted to say something, but I think he has said it so well.
67. That may be enough on clauses 36 and 37.
Clause 38 is another case maybe where you are really putting into
a formal version what already actually exists. Could you tell
us just a little bit about the purpose of the archbishops' list?
(Archdeacon of Malmesbury) This is a list which has
existed for some considerable time. It is a very informal list
but it has been very much more controlled in recent times. We
want it to be a formally, legally established list. It is primarily
to be a record of disciplinary decisions with clear indications
of how it has been gone about with the priest. Even if a disciplinary
decision has been made against a priest, he or she will still
have the right to see what wording might be recorded to explain
that and to be able to discuss that. They will have the opportunity
at least every five years for it to be reviewed. It is so easy,
once you are on a list, that it just drifts. We guarantee that
it cannot drift and they can, or a bishop who might be interested
in using them in a certain way can, ask for a review before that.
The bishop will know more about it, because the only people who
actually see these lists are bishops; not even archdeacons see
the list. When a person is appointed, if it is discovered afterwards
that there was something quite serious, no-one ever believes a
bishop or archdeacon who say they did not know and if they did
not know they jolly well should have known. So the list is a methodology
for ensuring not only people disciplined but people issued deeds
of relinquishment, who have themselves voluntarily decided they
want no further preferment, are known about as well. The bishop
may have a few comments to make because he has actually practised
68. Do you wish to add anything to that very
(Bishop of Winchester) I want simply to make clear
that this draws into a stated practice what has been good practice
for years. I have been a bishop for 15 years and in the two dioceses
I have served in as bishop, this is all present practice, except
for the mandatory review and it seems right to me that that should
be here. It is also the case, as the archdeacon says, that the
bishops have a copy of this list, which is regularly revised.
It lives, in my case and I guess in my colleagues' case, in a
locked drawer in my desk, rather than in the secretary's office
with a range of other files. What the bishop has is a person's
name, the date of their ordination, the date on which the particular
discipline or judgment or whatever was imposed, and the dates
of any revisions or modifications of that. The detailed background
papers, which will be subject to the right kinds of caveats, are
in Lambeth or Bishopthorpe.
Chairman: Thank you for that. Any questions?
Lord Williams of Elvel
69. Given that this list is obviously a secret
list which is held in the bishop's locked drawer, how does that
sit with the Data Protection Act?
(Miss Cameron) We have considered this matter and
we have been advised that what we propose here is entirely consistent
with the Data Protection Act. The archbishops are data controllers
and some of the information of course would be public knowledge
anyway, in the sense that when people have been convicted, etcetera,
it is all public knowledge. Any other matters would be confidential
to the person, their personal particulars and so forth, and those
are recorded in accordance with the Data Protection Act. The important
thing is that the person whose name is recorded is entitled to
see exactly what is on the list, so there is no breach there.
It is confidential; it is not then made available to all and sundry,
which would be a breach of the Data Protection Act. It is only
made available to those who need it in confidence from the point
of view of making possible appointments.
70. Any person on the list knows that he or
she is on the list.
(Miss Cameron) Yes.
(Archdeacon of Malmesbury) Yes. It would be true,
if you go back 30 or 50 years, that there were people who only
discovered they were on the list when they never got anywhere.
It would be fair to say that anyone who has been placed on the
list in the last 15 to 20 years does know that. Under this system,
when it is brought within the legislation, it will be impossible
to go on the list without you having been told precisely what
is going on the list and given a chance to comment.
Sir Sydney Chapman
71. The second part of sub-section (4) of clause
38, makes it very clear that once a review has taken place, the
person affected cannot ask for a review for a further five years.
What is not clear, and I should very much like some guidance on
this, is whether it is possible for the archbishop to review a
case before the five-year period is up?
(Bishop of Winchester) I have no doubt that it is
possible for the archbishop to do it. There are two other things
to say. First, as I read that, "entitled" does not mean
that the person could not ask and the archbishop could not review.
I take "entitled" to mean that. More important, what
this does not say, absolutely properly, is that the process that
regularly happens should not take place. The way that this works
is that if priest X is living in diocese Y, which may or may not
be the diocese in which the discipline or whatever was originally
imposed, and if the bishop of the diocese in which he now lives
wishes to consider either preferring him to a post or employing
him in a curacy, or bringing him into the beginnings of ministry
with permission to officiate, that bishop may ask the archbishop
to review the situation and the archbishop in that case consults
the bishop of the diocese from which the man went on the list.
What this does not say is that no-one else can, of those involved,
seek review. So there is a range of possibilities. What this is
seeking to avoid is what could become really quite a vexatious
process of rolling review.
Lord Pilkington of Oxonford
72. There has been a lot of distress in matrimonial
cases in the case of the wife, who often says she has been neglected.
In the process of review of someone whose marriage has broken
up in unfortunate circumstances, would the former wife be consulted
by the bishop? I am thinking about the rules or procedure. As
you know, there has been a lot of distress in the Church about
people being restored to office while the wife is leftI
can speak from personal experiencesin some cases destitute.
(Bishop of Winchester) The House of Bishops is very
aware of this. The present position, which appears in what is
at the minute the draft code of practice, is that a bishop should
consult an ex-wife or an ex-husband when exploring the bringing
of somebody back into ministry and that he should also inform
them if, as a result of that process, a person is brought back
into ministry; because there have also been unfortunate cases
when a wife has heard that her ex-husband is, as it were, practising
again by some roundabout route. There are always people who will
be delighted to tell her. Both those points are allowed for in
the present understanding of good practice of the House of Bishops
because they were there in the draft code.
Lord Campbell of Alloway
73. This is perhaps a silly question but why
five years? Would it not be so much more sensible for the bishop
to have total discretion to do this in circumstances which arise
which he thinks appropriate? What is wrong with the general episcopal
discretion? Why five years? I suppose there must be a reason,
but I cannot understand what it is.
(Miss Cameron) May I endeavour to answer this one?
The point is that clause 38(4) imposes a duty, a legal duty, on
the archbishop to review after five years. It does not prohibit
him from reviewing earlier. In fact, although the person affected
cannot in a sense demand as a right a review until five years
have elapsed, that limitation does not apply to the bishop. So
a bishop could ask the archbishop to review the situation in relation
to a particular clergy person within the five years. The important
point is that this is designed to give better protection to the
clergy person, that you must have a review after five years and
the archbishop is under a duty: whether he likes it or not, or
is too busy or whatever, he must do it. It does not preclude an
earlier review, particularly if it is initiated by a bishop.
74. Does it come to this then, to clarify? This
is fine, the bishop does have his discretion to use at any time
and this in no way derogates from that discretion.
(Miss Cameron) No.
Lord Campbell of Alloway: That is fine.
75. In practice this is whether somebody is
included on the archbishops' list. It is not what the archbishop
does in terms of appointments or disappointments or anything else.
(Miss Cameron) No.
76. Four of the five categories are matters
of fact and a review cannot deal with matters of fact. It is a
fact or it is not a fact. May I ask a question? I am not suggesting
this Measure should cover every possibility. In medicine, doctors
who have been disciplined in another jurisdiction have in the
past been able to take on employment in this country and possibly
vice-versa, doing things for which they would have been disqualified
were they still in the jurisdiction where they were. We may come
at some other stage to the reverse point, but is there an obligation
on a person in Holy Orders to disclose to a bishop or archbishop
that they have been subject to a similar sort of thing?
(Archdeacon of Malmesbury) We have, for want of a
long title, an Overseas Clergy Measure. Someone coming into the
provinces of Canterbury and York from overseas must receive archiepiscopal
authority to minister in these provinces and before that will
be given clearly references are taken up and their good standing
is checked. Hopefully, that is a relatively rare occurrence.
77. Can we presume that were one of our people
to go overseas, let us say to Wales or Scotland or further, and
the same enquiry came in, there would be access to the archbishops'
list to be able to disclose to another potential employer? Can
I leave that point for you to think about? It is not relevant
(Bishop of Winchester) It would come to the bishop,
not the archbishop. If a priest from my diocese, at whatever point
in time, were seeking employment in the United States or in Ghana
or wherever, I guess the relevant bishop would probably write
to the bishop of the diocese, but he might do that through Lambeth.
There would be that interaction. It is then up to the bishop who
is seeking the advice what he does with that advice, but the process
is in place.
Mr Bottomley: I would commend that whatever is there
under the Data Protection Act or codes should include notifying
people that the fact that they are on the list will be disclosed
to any potential employer if it is relevant, or may be disclosed.
Lord Williams of Elvel
78. That is a very important point, particularly
about the Church in Wales, if I may say so. There is a lot of
cross-fertilisation between the Church of England and the Church
in Wales, which is of course disestablished. This Measure does
not apply to the Church in Wales. Nevertheless, there is a lot
of cross-fertilisation, people come from wherever in order to
take up incumbencies in Wales. Can we assume, in some form or
other, that whoever is on this list will have his card marked
if he wishes to take up an incumbency in the disestablished Church
(Bishop of Winchester) The response to that has to
be strictlyyou talked about Wales so I will quote Walesthat
if a Welsh bishop asks the question he would be given a straight
and proper answer. It depends on the bishop of the receiving place
determining that he will check the matter. It is not the Church
of England's business to supply information unasked outside its
Lord Pilkington of Oxonford
79. Do people not ask for references?
(Bishop of Winchester) I shall say no more.
(Archdeacon of Malmesbury) It would be the experience
99 times out of 100 that there is what we call a clearance reference
from one bishop to another and there would be references. I have
known of occasions where the clearance reference was not asked
for. I have known one or two occasions where the references were
not taken up.