Examination of Witnesses (Questions 1-19)|
QC, THE REVEREND
WEDNESDAY 18 DECEMBER 2002
1. Archdeacon, can I first of all welcome you
most warmly to this meeting of the Ecclesiastical Committee and
thank you for bringing such a strong team with you from the Synod.
Perhaps you might like to start by introducing the fellow members
of your team.
(Archdeacon of Malmesbury) Thank you,
my Lord. On my left is David Williams, who is Clerk to the Synod.
Next to him is Canon Frank Dexter, an incumbent in Newcastle,
Chairman of the House of Clergy in the Newcastle diocese, and
a member of the Steering Committee. Next to me is the Bishop of
Winchester. On my right is the Dean of the Arches and Auditor
who is also a member of the House of Laity of the General Synod,
and Stephen Slack is the Legal Adviser to the General Synod.
2. Thank you very much. As you know, we have
all read, well, I hope we have all read your very helpful comments
and explanations of the Measure. So I think you can assume that
we are all broadly familiar with the Measure and what it is attempting
to do. Perhaps you could start by highlighting the points which
you regard as being the most important. You have, after all, been
involved in this for a very long time so you are in a strong position
to do that. Afterwards we will all want to ask questions. It is
a very important Measure so do take as much time as you want.
(Archdeacon of Malmesbury) Thank you very much, my
Lord. The Clergy Discipline Measure is a major revision of the
disciplinary procedures for the clergy of the Church of England.
The intention is to replace the present disciplinary procedures,
which are to be found in the Ecclesiastical Jurisdiction Measure
of 1963. These have been in place for the last 39 years. In that
time they have become increasingly out-dated. They are cumbersome
to use and inflexible in practice. There is no longer any confidence
in the Church that the 1963 procedures address the issues involved
in handling the fairly small number of disciplinary cases that
have to be dealt with. This new Measure has resulted from a thorough
and carefully considered process, extending over six and a half
years. This has been done deliberately, so as to allow for consultation
at each stage of the process. There has been a careful examination
of the disciplinary procedures of other bodies as part of this
exerciseof other Anglican Provinces, of other Christian
denominations, of the professional bodies in this country, and
also the growing experience of employment tribunals. The result
of this lengthy and carefully considered process is this new Clergy
Discipline Measure. It carries the support of an overwhelming
majority of 94.5 per cent of the General Synod100 per cent
in the House of Bishops, 99 per cent in the House of Laity, and
90 per cent in the House of Clergy (where only 23 voted against
the final approval). The new Measure balances the interests of
various groups, and it is important that I stress this particular
point. First, there is the society in which we live, which still
expects high standards of honesty, reliability and confidentiality
from our clergy. And secondly, there are our congregations that
have the right to be confident about their clergy upon whom they
rely and to whom they look for care and for guidance. So this
Measure provides assurance to both groups, to church and to society.
Clergy in good standing will be supported and defended. But where
clergy fall from grace or abuse their position this Measure means
that the Church will respond fairly and firmly. Thirdly, there
are the needs of those who feel aggrieved or hurt by less than
satisfactory clergy behaviour. In an increasingly litigious society
we see no virtue in seeking to avoid or ignore complaints. So
the process of making a formal complaint has been simplified,
and a right of appeal provided for when a complainant feels that
they have not had their concern taken sufficiently seriously.
And fourthly, and by no means least, there are the interests of
our clergy themselves. They are required, not least by the Canons,
to live and serve to a high professional standard. In doing so
and as public figures they become vulnerable. So this Measure
enhances the support of our clergy in a number of ways. Although
5,500 have freehold tenure, some 3,500 do not. This Measure creates
a level playing field for the first time by up-grading non-freehold
clergy to have the same security in discipline matters as the
freeholders. With this Measure no clergy may be disciplined other
than by the procedures laid down in the Measure, and to discipline
in any other way will, in itself, be an offence under the Measure.
In future, complaints will only be considered when made in writing,
and where the person making the complaint specifies in writing
the evidence on which their complaint is based. This is to enable
frivolous, malicious and anonymous complaints to be deterred and,
where they do occur, for these to be disallowed. Timings are provided
to encourage prompt responses where complaints are not sieved
out in the initial process. Rights of appeal are allowed whenever
a discretion is provided, so that this procedure is transparent
and fair. A flexible range of procedures is laid down so that
discipline is handled in the most appropriate way in each circumstance,
and a much wider range of sanctions has been introduced. In addition
to enhancing the interests of all four groups, the new Measure
has been carefully monitored to ensure its compliance with human
rights legislation. It has also been designed so as to be equally
applicable whether the clergy are brought under employment legislation
at some point in the future, or whether they continue with their
present status. My Lord Chairman, we now stand ready to answer
any questions that the Committee may have, and to respond to any
observations that the Committee may wish to offer.
Chairman: We are very grateful to you. Do any of
your colleagues want to add anything at this stage? If not, I
think we might start the questioning. Stuart Bell?
3. I am sorry to start so early, my Lord, but
I did not get the figures that you gave of the approvals. You
said 94.5 per cent of the General Synod and I did not catch the
(Archdeacon of Malmesbury) At final approval stage
the overall majority of the General Synod was 94.5 per cent.
4. And the bishops?
(Archdeacon of Malmesbury) That consisted of 100 per
cent in the House of Bishops, of 99 per cent in the House of Laity,
just two members of the House of Laity voted against, and in the
House of Clergy it was 90 per cent, where 200 voted in favour
and 23 voted against.
5. 23 against?
(Archdeacon of Malmesbury) 23 against, 200 for.
Chairman: I do not know what would seem to be the
most sensible way to approach the questions. We thought if we
could start with clause 1 and see if anybody has any difficulties
with that clause 1 as it is at the centre of the disciplinary
procedure. Could I ask if there are any questions or queries on
Lord Campbell of Alloway
6. I have got some difficulty with clause 1
because I do not know what it means and there is no possible interpretation
that I can give to it other than giving some pre-eminence or priority
to the role of the bishop in the disciplinary procedure, and I
cannot see why that should be necessary. I agree if you look at
the Measure as it is drafted that there is a perfectly sensible
provision saying that the bishop of the diocese should not sit,
alright, so far so good, but what about the bishop from another
diocese? Why in a disciplinary tribunal should his view have pre-eminence?
If it does not mean that, what does it mean? Of course, I was
put onto this by readingyou have probably read itthe
report of the Bishop of London who is President of this society,
but I did get on to it before, so it is not just my own concern,
it is the concern of the association with which the Bishop of
London is associated.
(Archdeacon of Malmesbury) I will ask the Bishop to
answer in some detail but I think I would want to start by saying
that we wish to emphasise in an episcopally ordered Church bishops
cannot be left out of discipline and indeed the title deeds of
the Church of England, which are the Book of Common Prayer and
the Ordinal, are quite specific that the bishop has primary responsibility
to take responsibility for discipline. Under this Measure it is
not perceived the bishop does that by himself, it is perceived
that he has a team of people to help him, therefore this basically
has been put in to remind people that the bishop in an episcopal
church has to be involved in discipline. I think the Bishop of
Winchester might want to follow that through.
(Bishop of Winchester) First, I know nothing of whatever
it is to do with the Bishop of London that Lord Campbell has referred
to, so I cannot respond to that, that is outwith my knowledge.
Second, there is no question that the bishop's view of a disciplinary
matter is included because the Measure is very carefully drawn.
Although the bishop, as this makes clear, in a significant sense
is the fount of the process, every step he takes is very carefully
taken on advice, if he takes any steps at all from the very beginning
of a complaint being made to him, which stems itself from this
clause. The third preliminary, I think I heard Lord Campbell say
something about the bishop of another diocese. That is neither
here nor there as well because the only bishop who is engaged
at any point is the bishop of the diocese concerned and the archbishop
is engaged either as the bishop of that diocese or the archbishop
of that province, so at any point in the understanding of the
Measure it is crystal clear which bishop and which archbishop
is involved. If I may then come to the substance of Lord Campbell's
question, the Archdeacon has already noted that the fundamental
position of our Church as an episcopal Church is, the Ordinal
of the Book of Common Prayer and the Ordinal of the Alternative
Service Book, and both recognise the bishop as the point of origin
of the institution and licensing of clergy. In the licensing documents
of every cleric in a diocese, the Bishop is the person to whom
in person or through a commissary every clerk makes an oath of
obedience; and that goes of the bishop is to the archbishop. The
Ordinal is itself very clear, if I may just quote briefly, this
is among the questions in the Book of Common Prayer Ordinal: "Will
you maintain and set forward, as much as shall lie in you, quietness,
love, and peace among all men; and such as be unquiet, disobedient,
and criminous, within your Diocese, correct and punish, according
to such authority as you have by God's word." Then: "Be
so merciful, that you be not too remiss, so minister discipline,
that you forget not mercy", which appears in the Alternative
Service Book as "He is to be merciful, but with firmness,
and minister discipline but with mercy." There are two other
things, my Lord and they are another way of putting what I have
just said about the oath of canonical obedience. The cure of souls
of everybody in the diocese who has a cure of souls derives from
that of the bishop over the geographical area of his diocese,
so whenever a bishop institutes a priest or licenses a priest
in charge, he receives a cure of souls, which is "both mine
and yours". The last thing to say I thinkand this
is another part of the Synod's understanding of the absolute centrality
of this clausehas to do with the character of the whole
process because the Ordinal also says: "Use the authority
given him"this is the Prayer Book -"not to destruction
but to salvation, not to hurt but to help, so that as a wise and
faithful servant giving to thy family their portion in due season."
It speaks of the character of the disciplinary process such as
it has to be as being not only justice and fairness but tinged
also with a particular Christian graciousness, as I understand
it. I believe all of that is there within clause 1 and that is
why there isLord Campbell's wordsa pre-eminence
or priority of the bishop of a diocese. In the end, however, though
in this Measure it is properly constrained in every kind of way,
the Synod takes the view that theologically the process does in
the end stem from the bishop of the diocese, as does the whole
work of the clergy.
Lord Williams of Elvel
7. Let us suppose that we are in the position
of flying bishops, if I may use that shorthand expression, let
us suppose that we get into women bishops, and let us suppose
that a number of clergy do not accept the ecclesiastical authority
of their diocesan bishop and that they respect the authority of,
let us use the word, flying bishop again; what would be the impact
of this clause and Measure on that?
(Bishop of Winchester) I think that needs dividing,
my Lord, if I may. We have at the moment those whom you call flying
bishops and this legislation has come to this point since the
Priests (Ordination of Women) Measure 1993, and so that is already
understood within this. I guess that is why the process ensures
that the whole thing is not dependent on the discretion and judgment
of the bishop of diocese, it is that bishops act on advice throughout,
that the process works that way, and should it in the rare instances
come to a tribunal again the bishop is not part of that. The second,
of course, is speculation, my Lord, for the future. I imagine
that were we to reach the stage that Lord Williams is mentioning
then there would be cross-references in the legislation but that
is not the situation that exists at the moment.
8. Dean of the Arches?
(Miss Cameron) May I just say this, my Lord Chairman,
that this Measure is predicated on our present diocesan structure,
and if members of this Committee refer to clause 10 (2) which
is on page 6 of the Measure they will see that a complaint shall
be made "in the case of a priest or deacon, to the diocesan
bishop", so we are not concerned with the unusual situation
of the flying bishop for which special provision was made after
the Ordination of Women Measure was going through Parliament.
In relation to the general question about clause 1, may I say
that as a matter of law when a diocesan bishop has his election
confirmed which makes him in law the chief pastor in his diocese,
the wording which is used is that he is given the "cure of
souls" in his diocese. Now all members of the Committee,
my Lord Chairman, are well aware that the Church of England at
the moment is an established Church and therefore the cure of
souls means everyone in the diocese, whether they come to Church
or not, they are the people of England whom the Church of England
is willing to serve and the bishops are there to serve them. The
important thing as far as the House of Laity in the General Synod
is concerned, and this was raised many times during our many debates
on this Measure, was there had to be recognition of the rights
of the people, and the bishop was charged not only with looking
after the interests of his clergy but also with disciplining his
clergy to make sure that they served the people in the diocese
professionally and properly in accordance with Canon law and in
accordance with their office. So this Measure has that as foremost,
and that is why this is important. It is difficult to unpack,
but that is what lies within it. The bishop has a dual role in
the cure of souls within his diocese. He must look after his people
and he must look after his clergy and of course he is part of
the clergy as well (we say that at confirmation of election) but
we must also make sure the bishop serves the people.
Sir Patrick Cormack
9. Every parish within the Church of England
is allowed perfectly properly as the law currently says to pass
resolutions (A), (B) and (C) and the third of those resolutions
enables the parish under its incumbent to opt out of the jurisdiction
of the diocesan bishop
(Bishop of Winchester) Not so.
10. And to receive the ministrations
of the so-called flying or episcopal visitor.
(Archdeacon of Malmesbury) The provincial episcopal
visitor is provided and every parish may pass resolutions (A)
and/or (B) but (C) if they wish to pass it has to be agreed to
by the diocesan bishop and when passed it means this flying bishop
is provided at a provincial level to provide pastoral care and
sacramental services, but everything else under law, including
appointments, exercise of patronage, remains where it is anyway.
My own experience from my own diocese is we invite the provincial
episcopal visitor to be involvedwe have not had any discipline
in any of our three parishesbut when we have had appointments
the provincial episcopal visitor has always been consulted and
brought into the exercise. We do not have to by law but we choose
to do that because we think it is right and proper to do that.
If there were discipline required because a complaint was laid
against a priest in a resolution (C) parish, it is inconceivable
to me that we would not ask for the guidance and advice of the
provincial episcopal visitor in reaching a decision.
11. I agree with that. I think it is appropriate
to have some mention of that in this piece of legislation so he
is brought in as of right.
(The Reverend Canon Dexter) My Lord, it is important
to remember that the diocesan bishop is still the Ordinary and,
whether I accept the ordination of women or not, the provincial
episcopal visitor is not my Ordinary, my diocesan bishop is. That
is why the Measure is framed in that context. That does not prevent
the diocesan engaging the help of the PEV in a disciplinary matter,
but that is not included in the Measure.
(Bishop of Winchester) May I just respond to that
because there is a little more clarification. Sir Patrick asked
why was this not drawn in? It seems to me it is perfectly clear
why it was not drawn in and that is becauseand, if I may
say so, I think Sir Patrick's inference was mistakenit
is the case that explicitly in the Act the diocesan bishop remains
what is called the Ordinary but he extends episcopal ministry
through the provincial episcopal visitor. It is also the case
that the Act of Synod is crystal clear that there is a kind of
cascade through which the diocesan bishop should run in extending
episcopal ministry. He should first of all look to a suffragan
bishop in his own diocese who is in a position to be acceptable.
He should secondly look to a bishop (diocesan or suffragan) of
a neighbouring diocese who is in a position to be acceptable through
the rule to extend the ministry. And only thirdly does he then
look to the provincial episcopal visitor. In relation to the legal
and disciplinary structure nothing has changed, so it would have
been misleading for this Measure to act as Sir Patrick has suggested
it should have done.
Sir Patrick Cormack: If I could correct that, I was
not intending to imply that. I am in a parish where we have deliberately
not passed resolution (C) although we have passed the other two,
and we very much wish our diocesan bishop to be our bishop in
every sense. I did not mean to say "all" and if I did
say that then I apologise. What I was seeking to do was clarifyand
I was ill and not on the Synod at the time of the material debateprecisely
what the position was and why there was no reference within this
particular Measure. You have answered that question but I was
not seeking to imply any disrespect to any bishop.
Chairman: That is resolved.
Lord Pilkington of Oxenford
12. On the same point, I absolutely accept the
position of the bishop in the Church of England. As you know,
under the Articles of Foundation of this Committee we are concerned
about the rights of the subject. I want you to answer this to
meet my point. In any other situation when an employee is brought
before a tribunal the employer has no influence whatsoever on
the tribunal, they are alien to it. In this case the bishop institutes
proceedings on the provincial level, he has the right of appointment,
the archbishop too has the majority right of appointment. It is
almost certain the archbishop will take advice from the diocese.
The question I want to ask is is the position of the citizen,
ie the clergy person, as protected under this tribunal as he would
be in a tribunal? For example when I was a headmaster if one of
my masters took me to an industrial tribunal I had no influence
whatsoever over the tribunal, I was pleading in open court. In
this case the Ordinary has quite a degree of influence by certain
appointments. I would like you to reassure us that the right of
the citizen is preserved, because, dare I say it, the position
of the Church of England vis-a"-vis discipline as regards
the Puritans or the people who did odd ritual things in the 19th
century has not been wholly good.
(Bishop of Winchester) My Lord, I am obviously not
going to get into a historical discussion with Lord Pilkington
but I think the proper response from the point of view of the
Measure is this: first of all, the bishop of the diocese, as the
Measure makes clear, acts on advice very clearly as to which of
the ways through he follows. Secondly, it is the bishop in consultation
with his council that nominates clergy and lay people to the provincial
panels. Thirdly, it is explicit in the Measure that not only is
it for the President of Tribunals and not any bishop to nominate
which members of a panel sit on any tribunal but that, unlike
the present situation, it is also explicit that no members of
that panel from the diocese concerned will sit on that particular
tribunal. Those are the points that need making in response.
Chairman: I think that is clear. We have probably
had enough discussion on clause 1. We have got much else to discuss.
Baroness Rendell of Babergh
13. My question, my Lord, is not particularly
relevant to any clause but I would like to know how many instances
there are each year of disciplinary measures being taken against
clergymen. I think the Archdeacon said it is quite rare. If you
do have figures I would be very interested to know what they are.
(Archdeacon of Malmesbury) It is an extremely difficult
question to answer simply because the Measure of 1963 is rarely
brought into use. I think it has only been used six or seven times
in 39 years but that is not to say there have only been six or
seven occasions and therefore a precise figure I cannot give you
but because of the present Measure most of it has been exercised
in informal ways.
14. In fact, it is very rare?
(Archdeacon of Malmesbury) Two, three or four significant
cases per year per diocese, that sort of figure.
Baroness Rendell of Babergh: I see, thank you.
15. Do you expect the number to increase when
the Measure is brought into being?
(Archdeacon of Malmesbury) My expectation would be
when this Measure comes in there might be a little blip because
there are a number of cases people have not bothered to take forward
because "what is the point with the present Measure, but
we can do so now, we think". There may be a little blip at
first butand I was talking to the Bishop about this before
we came, and neither he nor I have any experience that there has
been a growth in the incidence of disciplinary cases. They are
significant when they occur and we want to treat them seriously
but I am proud of the clergy in the Church of England, overall
they are a pretty good bunch.
Chairman: I think we have moved off clause 1, perhaps
inadvertently. I do not think we need to discuss it any further.
16. I wanted in a sense to encapsulate the views
which we have already heard. In the first instance, it is the
bishops of the Church we are talking about, it is the bishops,
archbishops, priests, and every member of the clergy swears an
oath of allegiance, he swears an oath of obedience, he also swears
a declaration of assent. That comes within the purview of ecclesiastical
law as well as civil law, as we understand it. So is it not a
fact that whilst we might look to be giving powers to bishops,
the bishops already have those powers under this former Measure
of 1963 is it not also the case we are diluting the power from
the bishops and spreading the load around? Can you confirm that?
(Archdeacon of Malmesbury) I would like to make two
points. The oath of obedience is a limited one because the cleric
agrees to obey the bishop in all things lawful and honest, so
if the bishop's conduct is unlawful and dishonest he is released
from that particular point on that particular issue. You are quite
right, the whole point here is it is a team job using skills within
the Church which are particularly to assist in this. I would like
to suggest in a very simple way that the bishop is really the
conductor of an orchestra. Things come to and from him but the
core of work is done by others, which is one of the reasons clause
1 is there, to remind people that there is still a bishop around
and there has to be some reference there. If the bishop gets a
clear report from his registrar in the first 28 days, he has to
be an exceedingly silly bishop to ignore that report which is
going to be public. At every stage it has an appeal procedure
written into it so if you really feel you have been dealt with
unfairly you can challenge it. The bishop has limited powers within
this but still is an essential part of the whole process.
Chairman: I feel the Committee would want with that
answer to move on from clause 1, if we may. I think Lord Judd
had a small point on clause 9.
17. In a sense my concern arises from some of
the issues to which other members of the Committee have already
referred. As the Church is dealing with disciplinary measures
itself and it is not an independent process, it seems to me it
is absolutely essential to be clear as to when it is dealing with
allegation and when it is dealing with how to deal with something
where an allegation has been substantiated. I am not altogether
reassured, if I am honest, that this is crystal clear when one
reads the whole document right through. I just think there may
be room for anxiety, unnecessarily, but there may be room. I centre
on clause 9 because I am most intrigued that the first sentence
in clause 9 reads: "No disciplinary proceedings under this
Measure shall be instituted unless the misconduct in question,
or the last instance of it in the case of a series of acts or
omissions, occurred within the period of one year ending with
the date on which proceedings are instituted". Surely it
is the alleged misconduct or the last alleged instance? There
is a big difference. I wonder whether you could put my mind at
(Miss Cameron) My Lord, that is implicit because you
are alleging misconduct and that is quite correct, but you do
not actually put "alleged" in a piece of legislation,
you would never find that word. It is assumed if you are bringing
any proceedings and you are making allegations that you will then
have to prove the allegations, and "misconduct" is the
word for what it is that is going to be alleged under this Measure.
It may be, while I am just addressing clause 9, I should point
out that in fact under the present Measure a clergyman is subject
to allegations of conduct unbecoming of a clerk in Holy Orders
and so forth going back for three years, so he is at risk of somebody
going back over a long period of time. The Synod actually reduced
the period. My Lord, a year is not very long in all our experiences,
it is a few months, and one year is quite a short timescale, one-third
now of what has been in force since 1963. So we have shortened
the period. If there are going to be complaints they have got
to be taken promptly, they are taken to the bishop, the bishop
then puts them to the registrar to see if it is just a busy-body
or somebody with a genuine complaint, and it then goes through
a strict legal process after that.
18. If I might just come back to that. Thank
you for what you have said, although I am not sure you have totally
reassured me and the reason for this concern is this is very firm
wording "occurred within the period of one year" which
seems to suggest that you are dealing with something that happened.
(Bishop of Winchester) No.
Lord Judd: What I am arguing is that perhaps at this
stage you are still discussing whether in fact it did happen,
and I just therefore wonder whether this is not something which
even at this stage might be looked at again.
19. Has Mr Slack got an opinion on that?
(Mr Slack) To reassure Lord Judd, can I draw his attention
to clause 7 (1) which deals with this very point, making it plain
that these are the procedures for dealing with clerks in Holy
Orders who are alleged to have committed an act or omission and
that references to misconduct are to be construed accordingly.