Examination of Witnesses (Questions 80-91)|
QC, THE REVEREND
WEDNESDAY 12 FEBRUARY 2003
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?
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.
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
(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
(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 helpif I might bring
this discussion down to a mundane levelwith 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
endand 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.
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 randomI 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 procedurewe have had it
often in the courtsas 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
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
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 heremay I use the wordwith
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.