Ecclesiastical Minutes of Evidence

Examination of Witnesses (Questions 20-39)



Lord Brightman

  20. I have a very brief point on 7. 7, as we know, excludes from the proceedings under the Measure any misconduct involving doctrine, ritual and ceremonial. We also know that the Measure is not intended to deal with a complaint involving a criminal offence, sexual offence or something like that. Would it be helpful for the reader to exclude expressly complaints involving criminal acts as 7(2) expressly excludes complaints which involve matters of doctrine, ritual or ceremonial? Would it be better to add criminal acts there?
  (Archdeacon of Malmesbury) Section 7 is dealing with moving on from the 1963 Measure where the items excluded were also part of the exercise, and therefore it is seeking to clarify that point in a Measure which is dealing with professional discipline. Criminal convictions arise later in the Measure at 33 and 31 and are clearly stated there, as they were in the original Measure, and therefore I believe they are clearly stated and therefore perfectly excepted.

  21. I am not disputing the Measure as totally inappropriate to criminal matters, I am just wondering whether it is easier for the reader, who perhaps will not know as much as we do about it, if criminal acts were expressly mentioned in 7 (1).
  (Archdeacon of Malmesbury) It has not been a problem for the last 39 years.

  22. I have got a small point on 8. 8(1) deals with disciplinary proceedings against any archbishop, bishop, priest or deacon and then we find under sub-paragraph (d) that "conduct unbecoming" is included as misconduct. We turn down to (3) and we find that: "No proceedings in respect of unbecoming conduct should be taken in respect of lawful political opinions or activities of any bishop, priest or deacon", but the archbishop is not protected.
  (Archdeacon of Malmesbury) I think I will ask Mr Slack to answer that.
  (Mr Slack) Before the Archbishop gets over-concerned about the point, Chairman, I have to say I think the intention when the Measure was amended by the addition of this provision was to replicate in substance the proviso to Section 14 (1) of the Ecclesiastical Jurisdiction Measure 1963 which did in turn confer the same protection on an archbishop as on a bishop. I think I would want to argue that this the effect of this provision, notwithstanding the fact that unlike Clause 14 (1) this sub-clause does not refer to archbishops expressly. I would want to say firstly that it could well be argued that express provision is in fact unnecessary to confer that protection because it would be inconsistent with the Human Rights Act for someone to be subjected to disciplinary proceedings on account of their political beliefs. Given that this provision is included I think I would also want to argue that it ought to be construed generously, that in other words the bishop ought to be understood to include the archbishop, on the basis that Section 3 of the Human Rights Act requires primary legislation, which this is of course, to be read in a way such as to be compatible with Convention rights and there is a right to freedom of expression of political beliefs.


  23. Lord Brightman has scored a bullseye there because our own legal adviser also noticed that there was no reference to archbishop. I would have thought it more sensible to include archbishop there if we can; maybe we cannot.
  (Archdeacon of Malmesbury) Our problem is it was an amendment on the floor of the Synod.

  24. To exclude the archbishops?
  (Archdeacon of Malmesbury) No, the actual wording there is an amendment on the floor of the Synod.

Chairman: I do not quite know how we deal with it but it is a point. Mr Taylor has pointed out that we have gone back from 9 to 7. That is entirely my fault.

David Taylor

  25. Thank you for that. We are still on clause 8 to which Lord Brightman took us and (c) "neglect or inefficiency". Will there be more attempts made to define those rather vague words in any greater detail? That is the first of two very brief questions. The second one relates to the clause we were on originally, clause 9, next to it, which Sheila Cameron talked about where it is the institution of proceedings which should be taken within 12 months but that can be waived if the president of tribunals considers they have good reason, etcetera, in the third paragraph of clause 9. Where that particular extension is included, should it not also include the question of whether a trial can be fair in these circumstances to clarify that particular position? So there are two things, the neglect and inefficiency definition and why can we not include a reference to the fairness in those circumstances of a late submission?
  (Miss Cameron) My Lord, dealing with the first point about clause 8 (c) neglect or inefficiency—it comes back to this point about protecting the complainant because there are things which may occur in a parish which one does not want to define too tightly because it would mean then that a complainant going to the bishop would be told, "I cannot take up this complaint because it is not within the definition in the Measure." I have been trying to think of some simple examples of things which I am afraid do occur. For example, there is a duty on a clergyman to visit the sick or the dying. If the clergyman or clergy woman ignores relatives' calls for a minister to come and turns up when he or she thinks it is convenient, and finds the person has died, then one could ask has that person neglected his or her duty. "No," they would say, "I have not neglected my duty, I was just a little late getting there." Is that inefficient? If someone is sick or dying and you get these calls, you have to have a very good reason for not responding. Another example would be a young couple rushing after work for an appointment for marriage preparation and the clergy person turns up an hour and a half late and they have steamed along very rapidly from work and again the answer would be, "Well, I did not neglect my duty, I turned up, I was an hour and a half late." If you get examples of that, that is inefficiency and you could get all sorts of examples. Those are just two that occur to me of simple examples of things that happen in life, sadly, and if you close the door on the ordinary member of the public or several of them who have suffered in this way their confidence in the clergy is not destroyed but reduced and this is why the Church of England says in order to prevent that—I am speaking as a lay person now—we want to have confidence in our clergy and we want to feel they are keeping up to a good professional standard. That is the first thing.

  26. Waiving the one year limit?
  (Miss Cameron) 9(2)—this Measure, my Lord, has got a lot of lawyers mentioned in it and although the General Synod is not very keen on lawyers, when it comes to the crunch they tend to shelter behind lawyers and the president of tribunals will be a senior lawyer who is appointed and is overseeing most of this structure. It is he or she who appoints people, etcetera, so there would have to be very special cases, good reason, and it can be seen that Clause 9, the second proviso, provides that the president may, if he considers there was good reason why the complainant did not institute proceedings at an early date, after consultation with the complainant and the respondent, give his written permission for the proceedings to go ahead. You say this is a late application. I want your views on it, and just as any judge, and my Lord Chairman has had many years' experience of this, you have to deal with an application, you have to apply the rules of natural justice and let people be heard and then you have the job of deciding is it fair to let this go ahead or to say you are out of time. That is a judicial process which the president of tribunals would have to carry out.

David Taylor: That point was raised by the English Clergy Association which was the body to which Lord Campbell of Alloway referred and which the Bishop of Winchester was not clear about being included in an earlier point.

Lord Pilkington of Oxenford

  27. Could I ask something related to this. The thing that puzzles me in the sort of inefficiency you described of not visiting the sick or the dying, in the normal course of occupation you would issue a warning and then you would issue a second warning and at no point in this Measure does it include the thing which is absolutely rooted in normal employment legislation, ie, the bishop, the archbishop, the Archdeacon or someone would issue a warning to the priest in question saying you have not visited the sick and only after the second warning, which is the protection that people have because they might have been sick or their wife might have been ill, and in this case you are dealing with tribunals before you have followed the normal process. Reassure me on that.
  (Miss Cameron) I will do my best to offer reassurance. The first thing is that this question of going to a tribunal will only occur after, in fact, a long process and a complainant working up enough courage to make a complaint to the bishop, so the scenario that Lord Pilkington was putting is the most likely one, that there will be a history of this and a history of warnings, of little meetings or somebody being sent by the bishop to speak to the clergy person concerned before we get to this stage.

  28. Could I ask why you did not put that in the Measure?
  (Miss Cameron) You do not need to, my Lord, because those are preliminaries. This is dealing with the stage —

  29. This is contrary to employer legislation. I have written more warnings in my life than I have earned pennies. Why is it the bishop is exempted from delivering warnings?
  (Miss Cameron) The other point which is completely new in this Measure, and I do not want to go too speedily on this because I think my Lord Chairman is guiding the Committee, what is absolutely new in this Measure which did not appear in the 1963 Measure and is relevant to Lord Pilkington's question is the conciliation provision in clause 15 because that is a very important part of the process before the president of the tribunals is asked to set up any tribunal at all, that the bishop may determine that an attempt had been made to bring about conciliation between the complainant and the clergy person concerned.

Chairman: We will hear you, Bishop, but afterwards could we move on while we are still reasonably fresh to clauses 17 and 18.

Lord Campbell of Alloway: I want something on 12.


  30. Is it the wish of the Committee that we should actually go through the Measure clause by clause? We do need to get to what I think most people are interested in, which is clause 18, and we need to get to it while we are still fresh. Would the Bishop like to add anything?
  (Bishop of Winchester) I can do so simply by pointing to the character of clause 12 and the clauses following, that for the vast majority of complaints, which at the moment are dealt with informally, considerably greater protection is given by dealing with them formally. I should anticipate that the vast majority of complaints—this is also in response to Baroness Rendell—will get as far as 14 and perhaps 15. That seems to me to be the answer to Lord Pilkington's question.

Mr Gummer: Can I just ask one question as I have to particularly look after those who may not be members of the Church of England. I do find this issue really very difficult because if the argument is that most things are done informally and sorted out in a proper way, then that is one thing, but this is not the informal mechanism we have here but the legal mechanism. I must say, and I think Lord Pilkington is on to a very important point, under the legal mechanism which protects every other person in our society it is not possible to behave in this particular way. I know that the Bishop and others have said that people will not behave in this way but under this system it is perfectly possible to demand a tribunal before there has been a first and second warning of the kind which is necessary in the legal protection of other people. I find it very difficult to understand this. If the Church of England had come before us and said "Bishops have a particular relationship with their clergy and this is how we do things", I must say I, for one, would be rather enthusiastic about it. I think that the first paragraph is far too weak and the kind of bishop presented in the first paragraph is not a bishop known to history, this is a new kind of bishop, this is not the apostolic succession type of bishop. That is not the issue of the public, the public problem is this: if we say in this document something which gives to the clergyman less protection than anybody else then I do find that rather difficult. I would therefore ask why it is that the Church of England has not, as in so many other cases, followed at least to this point what the general rules are, which is to say before a complaint can go to a tribunal there has to be a clear and public first and second warning as would happen in any other profession, if you are treating being a clergyman as a profession in that sense?


  31. Who is going to answer that?
  (The Reverend Canon Dexter) As a parish priest I do not believe that the relationship I have with my diocesan bishop is one in which he gives me warnings. If I am known to have erred in some pastoral matter I believe that my diocesan bishop would expect to handle that pastorally and I would expect it to be handled pastorally. If a matter persists, or I persist in my misdemeanour, then we can go into a hard case process which would take a very long time and considerable obduracy on my part to reach a tribunal. As Members of the Committee will know from the documentation there is a whole process of a sieve where I can be called to meet the bishop or his advisers, I can be given a warning, admonition, the bishop can say "No further action". There are very many safeguards before we could get to the position of a tribunal. I am quite convinced, my Lord, that there will be very few tribunal cases and most of them will be through the stubbornness of the clergy person concerned.

Mr Bell

  32. Can I make one point which is not clear. The nature of the clergy has changed. We have licensed clergy, we have freehold clergy and we have employed clergy. The licensed clergy are not covered by the 1963 Measure. This will actually cover licensed clergy, will it not?
  (The Reverend Canon Dexter) The status of licensed clergy will be strengthened by this Measure in that their licence cannot be removed by any other means than the process envisaged in the Measure for discipline.

  33. This Measure is there to protect the interests of a particular section of clergy, licensed clergy?
  (The Reverend Canon Dexter) It is.
  (Archdeacon of Malmesbury) Section 8(2) is quite specific, that they may not be disciplined other than by this procedure, which is a vast improvement.

Lord Pilkington of Oxenford: Can I say, my Lord Chairman, I am not doing this in any critical sense but I am doing it in a protective sense because hovering over a formal statutory body is judicial review and to guard against judicial review the business of a formal warning and a reply, it might seem against pastoral things but it would save an endless amount of trouble. I would have thought in this Measure, without trespassing on anything, that just a letter, a reply, because the person then puts his defence, would stop because you will get judicial reviews on this, it is inevitable, and they are very wearing for the Church and any employer. What I am suggesting is in a constructive not a critical way. I actually think this hole will land you in trouble later on.


  34. I think we want to get on to clauses 17 and 18.
  (Miss Cameron) I just wanted to say one thing very, very briefly, my Lord, if I may. That is, to include a provision requiring warnings in all cases would, in our submission, be totally inappropriate because there is going to be a range of seriousness. Do you say to the clergyman who is acting improperly with a parishioner "I warn you about this", or when a complaint is made about the impropriety does the bishop have to take it seriously and take the complaint seriously? I agree there is a difference between that and my little example about turning up late and that is demonstrating the range of potential activities. At the lesser end are those, as the Bishop of Winchester said, covered by the range of options in clause 12. On the more serious ones you could not possibly put a warning in each case, it would make the Church a laughing stock.

Lord Pilkington of Oxenford: In other cases where people are in pastoral professions where sexual relationships are concerned you have to do that. In other words, what you are claiming is difficult is what people in schools and in social services have to do. That is the point I am making.

Chairman: Who is going to start us off first on clause 18? If we can take the three points in order, first as to the standard of proof. I do not know whether anybody is going to argue that the criminal standard should be retained. For the reasons that you have set out you recommend the civil standard. Is anybody worried about that?

Lord Campbell of Alloway: Yes. I think it is an incredible provision. If you look at the types of penalty in clause 24: prohibition for life; limited prohibition; removal from office; do not bother about (e) and (f), which are injunction and rebuke. The others kill the life of the man and, therefore, in those circumstances the complaint of misconduct must be proven beyond all reasonable doubt under the criminal burden. I have read the literature that has been produced that says that Employment Tribunals do this and Employment Tribunals do that but it is not analogous at all. Here you have got the whole life of the man with the whole of his future ahead. It is a very serious matter. Not only that, if you go to the Bar Council I think I am right in saying that any serious offence has to be proved beyond all reasonable doubt but if it is something that is not so serious then it is the civil burden. For doctors, I seem to remember hearing, you have to prove the misconduct on a criminal burden of proof. I think it is incredible that these men of the Church should be subjected to what I regard as a total system of injustice. I cannot imagine how any sane Synod, any sane committee, could have come to a conclusion which is so unjust. Personally, on this ground alone I would ask that further consideration of this Measure be deferred and that we come back again another day. I personally will not accept this.


  35. I think the Archdeacon must deal with the general question as to why the civil burden was chosen rather than the criminal burden.
  (Archdeacon of Malmesbury) The core of it I am going to ask the Dean of the Arches to do. We did a very detailed survey. We wanted to learn from other practice. We discovered, as the tables you have received show you, that the civil standard is almost universally used. In our sister Churches and in our sister Anglican provinces that is the norm. We had to consider whether there were grounds to suggest that the clergy of the Church of England should be treated in a very special category separate from all others which required standards of protection which others do not experience, including the congregations that they serve. I think the Dean of the Arches is the right person to give you a more detailed answer.
  (Miss Cameron) I am not sure about that, Archdeacon, I think it is a very clear answer that you have given. I think the first point, my Lord, is that a disciplinary tribunal is not a criminal court. The 1963 Measure talked about a Court of Assize and, of course, that has been replaced with the Crown Court. The whole structure was expecting charges to be presented like an indictment in a criminal court and criminal procedure to be followed, and that is still on the statute book. That is what we are trying to replace by a disciplinary tribunal leaving criminal charges to be dealt with by the criminal courts and to have a tribunal which is dealing with professional standards. The chart which we put in as supplementary material, my Lord, deals with, I think, 10 or 11 other professions and shows that a substantial number of them apply the civil standard already. My Lord, Lord Campbell, referred to the doctors. It is true that there is nothing in their legislation or rules requiring the criminal standard as far as I have seen but, in practice, they are advised to use it. I understand that the new legislation, the Health Act 1999, which is applying to doctors, nurses, midwives and people in the Health Service, gives a power to the Secretary of State to intervene in regulatory matters. It remains to be seen whether the Secretary of State thinks it is necessary to intervene. There has been, and I think, my Lord, you and Members of the Committee will be aware of this, some public concern about professional medical standards because there have been some horror cases in the last few years. The real question, as the Archdeacon has said, is are the clergy to stand back and, notwithstanding that we are prepared to recognise that we are now 40 years on and that we want to move away from the concept of a Court of Assize to a disciplinary body dealing with professional bodies, still apply a criminal standard as though it were to be seen as a criminal court? The standard which is set, and has been set by the House of Lords in 1996, and we handed out a little note about this, makes it quite clear that a civil tribunal, which is what a disciplinary tribunal is, has to look at the matters, the allegations before it. We have already discussed this evening the range of possible seriousness of charges. The more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities. That is the guidance under which all tribunals are operating in this country. So far, as far as I am aware, it has not created any difficulty. There is an evenness about it. What would be the message to say that clergy are not prepared to stand up like members of other professions and have their tribunals test them on the same standards that apply to other professions? That is something which was debated at great length. I think it came up at least twice, if not three times, in different debates in the Synod. Members of the House of Laity and, to be very fair, members of the House of Clergy stood up and said "We are prepared to be tested". Of course there are some who are not happy about that. Many members of the House of Laity said "We must have the clergy prepared to be tested in the same way as members of the public".

Chairman: I do want to ask Lord Laming to speak next. But before he does so I have to declare an interest as having been a party to the decision you mention. The thing that annoys me is that what Lord Nicholls said in that case is always quoted and what I said, even though I said exactly the same, is not.

Lord Laming: Sorry about the voice, my Lord Chairman. I am not a lawyer but I am familiar with a lot of discipline proceedings of this kind and I do think this strikes the right balance. I support what the Archdeacon said at the beginning. Criminal proceedings should be dealt with within the criminal law to criminal standards. Civil law should apply to civil proceedings. If I have a concern it is not about that side of it, it is about the difficulty that people have to make the complaints. I think this should be applied in a way that enables complainants to have the right kind of support. Although I would go along with the Archdeacon's claim that the clergy may be a bunch of good people, we should not take that necessarily at face value but should enable people who want to make complaints to be properly supported. I think that the standard set out here is absolutely the right standard.

Lord Judd: I am very glad that Lord Campbell has made a stand, as it were, on this point. I am not quite sure I would go quite as far as he is going, it is very much up to the Synod to decide how it wants to go forward. I think the issue is immensely important. Can I just make three points as to why I think it is important. First of all I think there is a trend in this country, and I am sorry to see the Church following it, away from something which I always see as fundamental to justice, which is somebody is innocent until they are proven guilty. I think this presumption is being eroded. I am afraid that this is part of that change of culture. The second point, and that is why I raised the point about clause nine because there is a relationship, is that the Church is judge and everything in its own case here, there is no independent tribunal and, therefore, it seems to me to be all the more important that the balance should lie very firmly as it traditionally has lain. The third point that I make is that I think if you look at it just in the broadest context, I have listened very carefully to the case about wanting to take it away from the concepts of comparison with criminal law but the point was also made, and has been made rather forcefully, that it is also the process and the culture elsewhere. In tribunals elsewhere, apart from the fact that very often they are independent, it may be terribly grave but I would suggest that even if there is a negative finding there is a greater possibility for the person concerned to re-establish their life in some other walk of life and so on and make a new life. This person has a vocation. He may be removed from the priesthood if the proof of evidence is found against him. It seems to me that this is a very serious step indeed and, therefore, to move into this really rather subjective as distinct from rigorous approach that there has been in the past raises some very profound questions.

Chairman: I think there is a simple answer to the point on presumption. The cleric will still be innocent until he is proved guilty. The question is not of presumption, it is as to the standard of proof to enable you to get ot that point . The presumption is not changed, whether it be the criminal standard or the civil standard.

Lord Hardy of Wath

  36. My Lord Chairman, I have not spoken before but I have two points that I think are related. First, I do hope that it is well understood that although it may not be a criminal court, the tribunal can effect penalties which may be as devastating to the individual as a criminal court's would. The point I want to make is this: we must be impressed by the size of the majorities in the Synod but although 200 in the House of Clergy voted in favour of the Measure and they could see, as I can see, certain advances and improvements in it, 23 did not. It might be useful if we were told what the particular arguments were of the 23. Was it about this aspect of the matter or was it about the fact that they feared that there could be an injustice given that clergy today face many problems that their predecessors 50 or 100 years did not? If you have a clergyman in the Lincolnshire Wolds in the winter where it is hilly and people get snowed up and he is looking after six parishes which might cover 50 square miles and someone expects him to visit someone at death's door in five minutes' time in a snow storm and he is not there because his car has broken down, because he has not got all that big a stipend to run a car, they can complain and then we see, according to the briefing we have had, that someone can come along with a malicious and frivolous complaint which can be dismissed and then we find that complainant can appeal, although the terms of that right to complain I cannot find in this particular document. If we could find out what the particular reasons were for those members of the clergy who were opposed I think we may well be assisted and able to make much more rapid progress.
  (Archdeacon of Malmesbury) I cannot tell you even who the 23 were.

  37. I do not want their names.
  (Archdeacon of Malmesbury) I cannot tell you what their particular reasons were because at that point they were not declared. What I can say to you is that for the General Synod, even in the House of Clergy to achieve a 90 per cent majority is nearly a miracle in its own right. The figures are astonishingly high. Can I just deal with one issue from Lord Judd. I think he was a little less than fair and all my lawyer friends will be quite upset at the suggestion that the civil standard of proof has less rigour about it in being applied. I do not think that civil jurisdiction would recognise the truth of that.

Lord Judd

  38. I suggested there was a danger.
  (Archdeacon of Malmesbury) Fine. All right. Can I also just make the point that you quite rightly and properly referred to the most severe of the penalties and the most severe of the penalties are only ever going to be used relatively rarely in very serious cases. My own experience would be that on the overwhelming majority of occasions on which that is used it is because someone has been arraigned in the criminal court and found guilty of a serious crime and it follows on from that, something like child abuse or murder or something of that sort. In fact, I cannot think of many situations where a prohibition for life would even be considered by the Church to be appropriate for less than that degree of seriousness.

Mr Marsden: I do want to come back on that point and I want to reinforce the point that Lord Judd made and, indeed, the point that Lord Hardy made because, for example, it is not just a question of clergy today facing geographical problems that might lead to some of these charges, the truth of the matter is, as we have discussed on a number of occasions, the clergy today face a whole potential range of allegations in terms of sexual abuse and other things that people culturally would never have dreamt would happen 40 or 50 years ago. That certainly would come within the purview of this process. If I may say so, it is all very well for the Archdeacon to say that these full penalties would only be exercised on particularly severe occasions but it is worth remembering that this penalty of deprivation is a penalty of deprivation that is visited not just upon the clergyman or clergy woman but upon their families as well because in most cases they are likely to be deprived of their house and what goes with it, as well as the issue of whether they can rebuild their lives and all the rest of it. I do think that it is appropriate in those circumstances at least to reflect further on whether a civil burden of proof is appropriate. Forgive me for introducing this other point but it is related. Certainly I would like to hear a view from a Synod representative as to why it was that they did not consider it appropriate to at least consider in the first instance that the decision of any tribunal should be a unanimous decision rather than a majority one. That is an issue on which submissions that have been given to us are not conclusive, certainly as far as the various Churches are concerned. I put that marker up either at this point or subsequently if we wish to have a further discussion on unanimity.

Chairman: We have not really got to that point yet, that is sub-paragraph (b). Do you want to ask about the civil standard question?

Mr Bell

  39. My Lord, as I understand the whole thrust of this particular Measure we are seeking, as far as we can, to ally ourselves to Employment Tribunals, is that not the case?
  (Archdeacon of Malmesbury) We hope to learn from best practice of others, we do not believe that we have all the wisdom ourselves. Can I just remind you that professional bodies do have the right to so act within their profession, that those subject to discipline lose their job and very often that means they lose a lot else at the same time. Again, that only operates in a profession at the most extreme. I would have thought sexual abuse was probably a criminal offence that would be dealt with in the Crown Court.

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