Examination of Witnesses (Questions 53-59)|
QC, THE REVEREND
WEDNESDAY 12 FEBRUARY 2003
53. Archdeacon, may we first of all thank you
all again for coming back. I am assuming that it is the team as
(Archdeacon of Malmesbury) Exactly as before.
54. We will not go through that again. May I
just say first that I am very sorry that we were not able to complete
the questions we had for you on the last occasion, but, as you
probably saw, we actually ran out of sufficient people to hear
what you had to say. The delay may prove to have been beneficial,
because we have all had time for consideration and it may be as
a result of that this afternoon will be slightly shorter than
it otherwise would have been.
(Archdeacon of Malmesbury) Thank you
very much my Lord Chairman. We have no problem with that. We prefer
to go slightly slower and do it thoroughly.
Chairman: I am very glad to hear that. What we thought
we should do would be to go on from where we had reached, which
was clause 18(3)(c) of the Measure, to see whether there are any
questions on that and work through the rest of the Measure and
then come back to pick up any fresh points which were not raised
on the last occasion. If we can turn to 18(3)(c), which is the
provision that the hearing should be in private unless the clergyman
wants it in public, does anybody have any questions on that?
55. Sub-section (3)(b) provides that in the
case of a division of opinion the majority opinion shall prevail.
The reasons for the majority view are to be given. If there is
a minority opinion, it is not actually provided that the reasons
for the minority view are to be given. If the matter goes to appeal
under clause 20, the court would know the reason for the majority
opinion, but would not apparently know the reasons for the minority
opinion. In all the courts of which I have had experience, an
appellate court has always known the opinion of the minority.
It was in recent years provided that even in the case of the Privy
Council appeals, where the reasons for the minority opinion and
even the fact that there was a minority opinion were not disclosed,
that has been changed. Would you feel that it might be better
if the reasons for a minority opinion were disclosed?
(Archdeacon of Malmesbury) May I ask the Dean of the
Arches to answer that question, as she will be hearing the appeal.
(Miss Cameron) My understanding is that we are dealing
here with tribunals as opposed to courts and it is not unusual
for a tribunal decision to be a majority decision. You want to
know the reasons for the majority, because the right of appeal
conferred by clause 20 is an appeal on law or facts and the appellate
tribunal will want to see if the lower tribunal has erred in law
by its majority decision. Therefore the views of the majority
are the material fact. Whether there should be a recording of
a minority view is something which could in fact be dealt with
by the rules which will be made pursuant to the Measure because
the rule making committee has quite a wide discretion as to the
matters which will be covered procedurally. But the substantive
matter ought to be in the Measure, as we have it here, to make
it clear that it is the decision of the majority and that for
the purpose of either side it is important that the reasons which
have led the majority to their decision should be made clear in
public at the earliest stage.
Chairman: Are you happy with that?
Lord Brightman: It may be a matter for deliberation
later but I do not want to ask any further questions.
Chairman: Turning from 18(3)(b) to (3)(c), does anybody
have any questions? This is the one which says in private unless
the defendant wishes to be in public.
Lord Campbell of Alloway: May I briefly ask a question
Chairman: Yes. We were trying to move on but yes,
Lord Campbell of Alloway
56. Is there any record of any discussion at
the General Synod as to the need for a written determination for
the purposes of an appeal under clause 20 or on judicial review?
Was this matter discussed at General Synod? Is there a record?
(Miss Cameron) It is most unlikely. The Archdeacon
is saying no, it was not specifically. Again, if I may say so,
my Lord Chairman, the recording of decisions, whether it is done
by some modern recording device and then transcribed or whether
it is written in advance, all judgments at ecclesiastical courts
in the Church of England are now put in writing as a matter of
course. Certainly I would expect the rules to make it quite clear
that the tribunal decisions should be recorded in writing, otherwise
there would be no clear evidence for the purpose of an appeal.
57. Is the answer to the question no? Is there
is no recollection or record of any specific discussion of this?
I think that is right, is it not?
(Miss Cameron) Yes.
Chairman: Anything else on 18 (3)(c), anything on
19, 20? I know that Lord Judd has something on 26. Does anybody
have anything before we come to 26? Then that one is yours, Lord
58. As I understand it, under the new clause
26 you are removing the concept of deposition, are you not? Yes?
(Miss Cameron) Yes.
59. Can you just explain to us what happens
to people who suffered this fate before this was introduced? Will
it be retrospective or will it in fact only cover people after
the time it is introduced?
(Archdeacon of Malmesbury) If you look at 26(1) of
this Measure or the 1963 Measure they talk about "prohibited
for life or deposed", the 1963 Measure allows for deposition.
If you were deposed under the 1963 Measure, that would still hold.
The practical outworking of deposition is prohibition for life
and deposition does have certain complications theologically about
it, especially if you believe in the indelibility of orders. The
House of Bishops specifically sat to look at this and the Bishop
of Winchester can always comment on that. We felt that prohibition
for life clarified what the penalty was without having the complications
which have caused problems for the Church over the years.