Ecclesiastical Minutes of Evidence

Examination of Witnesses (Questions 80-91)



  80. In the trade in which I used to serve, it would have been regarded as a sin beyond the Holy Ghost if you did not tell a perspective employer of someone who had committed the moral offences we are talking about.
  (Bishop of Winchester) That was not the point the archdeacon was making. The question Lord Pilkington asked was whether it was not common practice to ask for a reference. My answer made it clear that of course it is common practice, but just occasionally people fall down. My point was that in such a circumstance, it would not be for the Church of England to volunteer information unasked across its borders. It might judge it right to do so, but strictly the question does have to be that the bishop in Wales or wherever needs to ask.

  81. What would be the position of the Church of England in a paedophile case if someone had gone without the Church warning them? Would you not be liable to damages? This is the complaint against the Roman Catholic Church. I think that in the protection of citizens one has to ask this. Suppose a bishop in the Church of England knew that one of his charges had taken a parish in Wales, was on the archbishops' list and he did not inform, in the position of the secular courts would his position not be very difficult?
  (Bishop of Winchester) I am sure that is true. My point was simply that there are Church of England bishops who have discovered that their clergy are in post in other places without having been informed of the fact in time to say anything. In the case Lord Pilkington is describing, I have no doubt that it would be incumbent on a bishop, if he discovered such a thing, not having had the opportunity to say so beforehand, to give that information. I have no doubt at all that would be the case.

Chairman: I think we may have had enough discussion on the archbishops' list. In which case, is there anything in the remaining provisions which we need to look at? The code of practice would seem to be fairly standard and clauses 40, 41, 42 and 43. Are there any other questions before we go back to the beginning again and the remains of the Measure? If not, I know that Lord Brightman has a new point on clause 11, which he would like to ventilate.

Lord Brightman: I am very sorry to say that I have found an earth-shattering amendment which I think should be considered in clause 9. Would it be possible for the sub-sections to be numbered without going back to the General Synod? They are the only sub-sections in the whole Measure which have no number.

Chairman: Yes, they can.

Lord Brightman: Thank you. May I pass then to clause 11? For simplicity, I should like, if I may, to confine myself to the case where the complaint is one which is laid against a priest and therefore laid before the diocesan bishop under clause 10(2). That is simply in order not to get tied up with the provinces. The first step is for the written complaint to be referred to the diocesan registrar. That is page 6, line 15. The next step is for the diocesan registrar to scrutinise a complaint so that he can form a view, first, whether the complainant has locus standi to complain and second, whether there is anything in the complaint, whether it is frivolous or whatever may have been deemed. That is page 6, lines 16 to 24. The third step is for the diocesan registrar to send a written report to the bishop, setting out the registrar's view. That is page 6, line 29. The final step is for the bishop to consider the registrar's report and dismiss the case or take any of the five courses outlined in clause 12(1), which range from no further action to a disciplinary tribunal. Put very shortly, the material and the only material, laid before the bishop to enable him to decide what to do is the registrar's report. If I have said anything so far which is incorrect, I should be grateful if I could be told. Before the registrar composes this vital report, the complainant has a right of audience before the registrar. That is page 6 line 17. The respondent has no right of audience at any stage whatever, except where the registrar wants more than 28 days in which to write his report. In that case, both the complainant and the respondent have a right of audience limited to that issue. My first question is this: did the General Synod consider whether both sides should have a right of audience before the diocesan registrar?

Chairman: Would you like to give the full extent of your questions and then come back to the first one?

Lord Brightman

  82. The second one is a minor one, which is this. Where do I find the qualifications needed for appointment as diocesan registrar?
  (Miss Cameron) First of all, I think my Lord Brightman is slightly altering the wording from clause 11, because it does not talk about a right of audience. What clause 11 refers to is "in consultation with the complainant" in line 17. The question about whether the General Synod considered the right of audience is therefore not appropriate. The question would have to be altered, because there is no right of audience at all. If I may go back a little bit, your Lordship will remember that one of the points which we made on the previous occasion was that this Measure introduces a right, which does not exist under the 1963 Measure, to let an ordinary member of the public lay a complaint before the bishop. Under the 1963 Measure there are very technical restrictions as to who can complain. At this stage, this preliminary scrutiny of complaint, under clause 11(1) is in relation to a complaint in writing, a letter which somebody has written to the bishop, putting in his or her own words what the complaint is about the vicar. It is referred to the registrar and the registrar has to see, and it is laid down, if this is enacted, whether that person is just a busybody, or whether that person has a proper interest. If they say the vicar behaved disgracefully at a wedding recently and they do not say whether they attended, the registrar has to be able to consult the person and ask whether they were present. If they only heard it through the grapevine, they do not have a proper interest, they are not sufficiently closely involved to be able to lay this before the bishop and that would be ruled out on that ground in the registrar's report. Then the registrar has to see whether there is sufficient substance. Is it just tittle-tattle? Is it something which is just malicious on the face of it or something which appears, on the face of the letter or complaint to have a little substance. It is because the registrar is assessing the complaint in this form that it is necessary, and that is the view of the General Synod, for him to do justice to the complainant as a member of the public, to give that person the right to develop the point, if necessary by producing a document, or something which has been omitted from the individual's letter. At that stage there is nothing for the priest to answer, because we have not been through the very preliminary stage of discovering whether (a) the person has any right to make any complaint and (b) on the face of it there is any substance in it at all. That is why the General Synod took the view that there should be consultation with the complainant, and to be fair to the complainant, that the priest should be notified that this complaint is being investigated. Then, as my Lord Brightman took us through the clause, the registrar says actually he thinks this person was at the wedding, there was a commotion, there is something which ought to be taken up, or he thinks it is rubbish. If he thinks it is rubbish, then the bishop just says that it is rubbish and dismisses it. If he thinks there is something in it, then we go to the next stage of giving the priest the chance to answer it and to take what advice he may need. The answer to the other question which my Lord Brightman asked is that it is provided in our Canons in G4, that the registrar has to be a person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990, learned in the ecclesiastical laws and laws of the realm and the archbishop or bishop appointing him must satisfy himself that the said person is a communicant in the Church of England.

  83. How would you define the difference between "in consultation" and "audience"?
  (Miss Cameron) I would consider "right of audience" is when I might in the past have had the privilege to appear before you and to argue a case. Then I have a right of audience. If I am merely asked, if I get a letter asking whether I can send a copy of the letter to which I refer in my letter to the bishop, that is a general form of consultation; it is simply an opportunity to be in communication with. Consultation can be carried out, if I remember my law correctly, in various ways, and a lot of them are informal.

Mr Gummer

  84. Justice has not only to be done but to be seen to be done. May I put to you the reason why I have great difficulty with this particular distinction? There is a gentleman in a parish who has already been bound over by the police on several occasions for causing trouble to his neighbours. One of his neighbours is the vicar and he writes a sane letter to the registrar, who has no knowledge about all this at all. It would help, it seems to me, if the registrar, looking at the letter, might have the possibility that, when the vicar received the letter making the statement, the vicar be able to write to him or ring him up and say that this was the fifth time that the police had been called over this. It does not involve a vicar, but I have a situation which is very parallel to this in my constituency, so I can imagine it happening. Under this situation, he would not have that automatic ability to do that. No doubt, if he received a note, he might well go back to the registrar and write to him immediately, but I must say I find this an unfair consideration. I would feel it to be unfair, were I put into that position. I do think that people must feel that they are being fairly treated. As a vicar's son, I have to say my experience is that there are more complaints which are nonsense than complaints which are real. It is very hard being a vicar. I would not wish it to go onto the next stage, if there were an opportunity to stamp on it in the first place. I would have thought it was natural to turn to the vicar and say, in advance, just as you might get the complaint right, I can see that, but the first thing you should surely do as the registrar is to ring the vicar up and say you have had this complaint. The vicar would then say "We've never got on very well" or something of that sort, or he might well give some information which would mean that the whole thing could then be dealt with as it was and the rubbish word used. If you do not give him that opportunity, I really do think people would feel very unfairly treated and it suggests that complaints are more likely to be true than untrue and I think that is contrary to the facts of parish life.
  (Canon Dexter) In answer to Mr Gummer's question, the parish priest does have that opportunity. He may not have it at that point. He is informed that a complaint has been lodged against him. I guess, if I had a complaint lodged against me and at that stage were asked to give my side of the story, my legal advisers might well say, "Keep quiet. Wait until the process starts properly". There are two intentions behind this Measure. One is the good conduct of the clergy, hence the Clergy Discipline Measure. The other is the benefit of the whole Church. One of the things we strive to do in this is to give to laity an easier way of making legitimate complaint against the clergy where that is required. There are always the nonsense, the rubbish complaints. I as a parish priest have experienced those and I guess my colleagues have as well. As a parish priest I do not feel disadvantaged by the fact that at this stage the registrar would not be enquiring of me.
  (Bishop of Winchester) May I make three brief points alongside that, and recognising the general point Mr Gummer is making which of course stands up in every part, including the large proportion of inconsequential complaint which is there? First, it is one of the purposes which has recurred both in the process of the Measure through Synod and in our discussion last time and this, to reduce to the more formal a range of activities which at the minute tends to be informal; and this, for everybody's defence, particularly at a time when there is a widespread sense out in the public mind that organisations are going to behave defensively and so on, and to be just to complainants. That is one of the reasons why all this has been so codified and I can understand Mr Gummer's anxiety. The second is that I can imagine that when the registrar notifies the respondent that the complaint has been referred to him, it does not say that the respondent cannot write back to the registrar saying, "Hey, look, these are the circumstances". But, thirdly, and this seems to me to be the substantial point as I understand it, we had a considerable discussion last time about clause 1 and the role of the bishop. My guess is that if the Measure at this point had required the registrar to consult the respondent, we should have had material coming from the registrar to the bishop which would have put the bishop in a position of acting in some sense as judge. My understanding is that the Measure has been very careful, at point after point, to get right the bishop's position and ensure that the scrutiny of fact and allegation is carried on by others on the bishop's behalf and not by the bishop himself.


  85. Am I not right in thinking that the procedure under clause 11 came in as a result of the first opinion which the Synod obtained on the Human Rights Act from Mr Philip Havers, QC? This way of dealing with it was intended to answer his difficulties on that point, the registrar being independent of the bishop. I seem to recall that.
  (Miss Cameron) Yes.

Lord Judd: I was not actually going to intervene on this, but having listened to the discussion, I am getting more concerned than I was before. I think Mr Gummer has raised a very important point. These things are not absolute, they are a balance. They are about perceptions. I would take second place to no-one in my defence of human rights and obviously the Church has to play its part in ensuring human rights are safeguarded. But it does seem to me that if you look at this point which is now being raised, together with the point you will remember I raised on 9 about not leaving out the word "alleged" which could be explained but was not there, I just begin to get a little bit anxious that the Church is slipping from a leadership supporting role for its clergy into a sort of situation in which the public must be right unless they are proved wrong and we are not there to stand by our clergy. It would be very dangerous and wrong if the Church got into a position in which it was defending its clergy right or wrong against public criticisms.

Baroness Wilcox: It is not a trade union.

Lord Judd: No, but it is a balance. I am just concerned that the more we look at this the more there is a sort of perception about the overall impact of this which is changing the balance a bit. I am not sure it is going to help—if I might bring this discussion down to a mundane level—with recruiting new clergy, in the long run, if there is a feeling that they are up there as a public pillory and they are not going to get much support from the Church unless they can prove their position.


  86. Do you want to add anything to what you have said on that?
  (Bishop of Winchester) I can only say that in my experience as a bishop, there are many people, including many people in the Synod, who might wish to take the general point Lord Judd has made, but who did not make it in relation to this clause more generally in the Synod. In other words, there was a substantial sense that those things were not the case. I am obviously very familiar with the general point and very concerned that the balance should be held.

Lord Brightman: The point was made that if a right of consultation was given to the complainant it might place the bishop in a sort of judicial position. That is precisely what the bishop is intended to be in, because it is the bishop who has to decide whether to dismiss the whole matter or whether to send it on to the later procedure which involves various things, from letting the thing drop to the final decision which the bishop has to make as to whether the complaint is to be formally investigated. I cannot myself get away from the thought that the bishop is in a semi-judicial position because he is called upon to make a decision upon the evidence of one side.

Lord Pilkington of Oxonford: I must support that. I can see the business of the priest in the parish, and I think Lord Judd has it right, a complaint is made, it has to go through elaborate procedures and, I am no lawyer but Lord Brightman is right, the bishop decides whether the case goes on or not. It seems to me somewhat unjust that he cannot appear before the bishop, but has to let the process go on. We know frivolous complaints can be made. I will not pile on the agony of a long meeting but I basically agree with what Lord Judd said.

Chairman: We have really asked enough questions. One more question?

Lord Campbell of Alloway: I want to ask whether this question of want of balance, of injustice, of unease, which we have heard expressed today, was discussed at all at General Synod or was it just, as we have heard, that you took an opinion, said it was all right by the Human Rights Act and called it a day? I should like to know what happened.

Mr Bell: May I interrupt briefly on this point and say that this Measure was discussed, debated, analysed, reviewed, consulted on for six years? During those six years the Human Rights Act came into operation and it was reviewed, consulted, debated, analysed again in the light of that Human Rights Act. So the balance between the rights of the clergy, the rights of the Church, the need to encompass the modern trends, has created this confluence, which the Church is forced to meet. Therefore to all of the points which are made about whether this was debated or that was debated, the answer is that not only were they debated, consulted and reviewed, that went on for six years. If I may anticipate our proceedings, if we are unable to reach a conclusion on these matters, we simply will prolong a situation which is neither satisfactory to the clergy, nor satisfactory to the Church, nor satisfactory under the Human Rights Act. Therefore I think it would be appropriate to keep that in context in this Ecclesiastical Committee.

Lord Campbell of Alloway

  87. That does not answer my question.
  (Archdeacon of Malmesbury) May I make two comments? The first is that the issue of when to share with a cleric that a complaint has been made against them took up an awful lot of discussion time. It would be fair to say that no universal viewpoint was expressed; people came down in different ways. What I would also want to say is that in a more litigious society, we recognise that one of the problems of the 1963 Measure was that you could argue that it had been deliberately framed to prevent you from making complaints and to prevent clergy from being accused. We felt that was wrong. We felt that if clergy have nothing to fear, if there has been a genuine indiscipline then it needs to be faced, if there has not, then it needs to be cleared. We realised that we needed a procedure to allow complainants a more ready access to make their complaints. We were very impressed with the procedures which we examined, especially those for the medical profession, who have a phenomenal number of complaints made against them each year, but relatively few which reach the more serious levels. How can that be? The reason is that they have what I would call an efficient sieve system, so that you sieve things out. This clause 11 is a sieve. At the end of clause 11 no comment has been made about whether the complaint is valid or invalid, none whatsoever. All that has been determined at that point is whether there would appear to be sufficient substance in the complaint for it to be considered to be a disciplinary complaint. May I also say, that in the complaints we receive, some of them are not disciplinary at all. They need to be sieved out as well. My own experience as an archdeacon is that in actual practice, more often than not the cleric will know about the complaint. I can think of one I had just recently which appeared on the surface to be a formal complaint, that he failed to turn up in time to take a funeral in a country church and it was all locked up. It was the most natural thing in the world, when I next saw him, to ask quietly what had happened. He told me how upset he was by that and what had happened, which clearly explained what had happened and it was taken no further. Here, all that has been determined at the end—and remember the bishop is responding to the guidance given him by the registrar, the registrar is informing him (1) that this person is a legitimate complainant, they have a right to complain here, (2) that the complaint has apparently some degree of substance so we will need to look into it and (3) the registrar will also say whether the complaint would be disciplinary anyway if found to be correct. That is as far as we have got; no guilt or innocence has even been attempted at this stage. That goes on in the next stage.

Lord Brightman

  88. May I anticipate a ruling against me by pointing out that something inaccurate has just been said? The inaccuracy, if I may say so with very great respect, is that the Measure provides that the respondent shall know of the existence of the complaint.
  (Archdeacon of Malmesbury) Yes. And my experience of clergy over the last 34 years is that a good number of them will respond to that and say something whether you ask them to or not. Some of them will respond and say yes, that is a fair point. Some will respond and say, no, that is not. Some will say, yes, but you have not heard the whole story. Some will keep quiet.

Mr Gummer: I really must press on this. What I do not understand now is that if people at random—I know we are not supposed to use the words "right of audience"—can get through to the registrar and there is no ban on them getting through, it does seem to me an unnecessary difficulty not to say that the registrar may ask for information which relates to deciding whether this is frivolous or whether somebody has proper standing or not. Take the example of somebody who writes in and complains about the fact that the vicar was not there in that church for a particular occasion. If the vicar knew that had not been his church at that date because it had not moved from the next-door parish to his, then surely there ought to be an opening for the vicar to inform the registrar. There is clearly a difference in the treatment of the two people. That is the issue. It seems to me that it is neither necessary, nor actually politic, to make that difference even at that level. That is the only point. It is just rather bad public relations to deal with it in that way. It is may be nastier than that. It may in fact mean that somebody is under suspicion in circumstances when they have actually got nothing to do with it at all.


  89. May I perhaps say something on this? There is an old problem with the sieve procedure—we have had it often in the courts—as to whether a person is entitled to be heard at the sieve stage in which you are sieving out or filtering out hopeless cases. We have decided that there is no obligation to hear the other party at that stage. The essential thing obviously is that once the filtering process has taken place and there is something to have a hearing about, then of course the clergyman has to be heard.
  (Archdeacon of Malmesbury) And in this Measure at that point—

  90. At the earlier stage, when you are simply filtering out hopeless cases, there is no obligation in law to hear the other side. I had it in numerous cases.
  (Archdeacon of Malmesbury) That was the understanding we had.

Lord Judd: May I just raise on that the point that these may be the procedures in the courts and the precedents which have been established, but that is for society as a whole? We are actually dealing here—may I use the word—with an organisation called the Church. If I may be very personal, when I was director of Oxfam, if a complaint of this kind were made, I would regard it in management terms as absolutely ludicrous not to go immediately to the person about whom the complaint was made or do some checking out before anything else happened, simply in terms of good use of public money. It would be a waste of time in the organisation to start pursuing the thing if there were a perfectly rational, easy explanation. The whole thing becomes very expensive in time and money and everything else and in the end there is also the issue of whether or not you regard the clergyman as part of the Church and that you have a responsibility for that clergy. It is not just society as a whole: it is the Church. That is the issue which exercises us. I bring these two points together, not only because as a member of the Church I am concerned about this, but also my management experience suggests to me that this is not really a very sensible way to proceed.

Chairman: I think we have all spoken enough on this subject. Any other new matters on which we need to ask advice from the Synod representatives?

Lord Campbell of Alloway

  91. I have one question. It is on clause 18(3)(a) which we discussed last time. I want to ask the same form of question again. Is there any record of any discussion at General Synod as to the competence of the chairman, and that arises under clause 3(1)(b), that is "seven years general qualification" under section 71(3)(c) of the Act of 1990? That general qualification includes anyone who has a right of audience, for seven years in this case, in all proceedings in the magistrates' court. What I want to know is whether there was any discussion of the competency of such a chairman to give legal direction to the other members of the tribunal as to a standard of proof which shifts with the general gravity of each particular offence? Was this discussed? I know we discussed it before and I do not want to go over it again. All I am trying to find out is whether this matter of the competence of the chairman was discussed?
  (Archdeacon of Malmesbury) Yes, it was. One of the features under the present Measure with the consistory court is that the diocesan Chancellor is the legal president of the hearing. He may have legal competence in any number of different areas, which may not be appropriate to the case which is being heard. A lot of modern Chancellors are particularly good at planning legislation, etcetera, because that is where they do most of their work. Then this would be reduced to ten people who would be chosen and approved to handle these sorts of tribunals because of their particular experience in this area.

Chairman: The division bell has rung, but I think, or hope, that concludes all the questions which any of us wish to ask you. I am not going to suggest you wait while Members of the House of Commons go to vote. May I just, on behalf of us all, thank you very much indeed for answering all our questions and for being so patient with us.

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