Ecclesiastical law

Month: May, 2019

Safeguarding and Suspension: The Case of the Bishop of Lincoln

Safeguarding and Clergy Discipline Measure 2016

The Archbishop of Canterbury has recently announced that

‘[1] Following information provided by the police, I have suspended the Bishop of Lincoln …

[2] If these matters [i.e the ‘information’] are found to be proven … the Bishop would present a significant risk of harm by not adequately safeguarding children and vulnerable people …

[3] there has been no allegation that [the] Bishop … has committed abuse …’.

The police, for their part, announced that ‘investigation into non-recent sexual abuses … resulted in 3 men being convicted’.  However, ‘phase 2 of the investigation is continuing, into wider safeguarding issues and management decisions within the [Lincoln] Diocese …’.  This wording suggests that ‘phase 2’ is not investigation of an actual or alleged crime, but a police audit of the diocesan safeguarding regime, which may, or may not, produce evidence of some crime.

According to his entry in Who’s Who, the Bishop was appointed in 2011 (not all that long ago), and held no other office in the Lincoln Diocese prior to 2011.  He is said to be ‘bewildered’ by his suspension, but has obediently promised to ‘fully cooperate’.

The Lord Bishop is also a Cardiff canonist, i.e a graduate of the degree in ‘canon law’ (which might be more accurately described as ‘ecclesiastical governance’) awarded by Cardiff University and magisterially taught by Professor Norman Doe.  (A distinction shared with the author of this blog, who is, however, unacquainted with the Bishop.)  The subject of the Bishop’s thesis was ‘The Parson’s Freehold in the Church of England: legal fiction and psychological reality’ (Ecclesiastical Law Journal 2003, p.376).

The 2016 Measure cited above was passed in response to distressing cases of ‘non-recent’ sexual abuse by clergy.  It made significant amendments to the Clergy Discipline Measure 2003.

The words ‘suspend’ or ‘suspension’ occur no fewer than 97 times in this relatively short Measure, including the headings of 5 of its 12 sections.  (The Suspension and Clergy Discipline Measure?!)  Perhaps the Bishop should not have been  bewildered by the treatment that he has received.

S.37 of the Clergy Discipline Measure, as amended by the 2016 Measure, now provides that the Archbishop may (not must) suspend a bishop (with the concurrence of 2 other senior bishops), if satisfied ‘on the basis of information provided by a local authority or the police‘, (not from other informants) that the bishop presents ‘a significant risk of harm‘.  Thus it is the Archbishop who must be satisfied that there is a significant risk, not the police or the local authority.  S.36 of the Measure makes similar provision for lesser clergy.

S.1(2A) defines ‘significant risk of harm’ as a significant risk that the Bishop (or other officeholder) may

(a) harm a child

(b) cause a child to be harmed

(c) put a child at risk of harm

(d) attempt to harm a child

(e) incite another person to harm a child.

(This definition comes from the Safeguarding Vulnerable Groups Act 2006.)

On their wording, (a), (d) and (e) require risk of some positive harmful act by the suspended person.  (b) can include risk of a negligent omission which causes actual harm.  The Archbishop’s statement makes clear that the ‘risk’ alleged against the Bishop does not fall within the scope of (a), (b), (d) or (e).

So the suspension can only be justified (if at all) on ground (c).  Clearly ground (c) is much broader than the others.  There must be a huge number of acts or omissions that are potentially capable of risking harm.

Ground (c) therefore requires

(1) a risk of harm and

(2) an act or omission that puts the child at that risk.

To put is defined in the dictionary as ‘move [child] so that it comes into some situation’.  The act or omission must be one that moves the child into a position of risk.

If a hypothetical bishop were to appoint a vicar whom he knew possessed child-harming tendencies, that could indeed put the children of the vicar’s parish at risk of harm.  However, it may be difficult to decide when the link between (1) the risk of harm and (2) the bishop’s act or omission is so tenuous and remote, or speculative, that it does not fall within ground (c).

For example, there may be information in diocesan records about a vicar who transferred out of the diocese some time ago.  A new bishop is appointed, is made aware of the information, but takes no action.  He has never been responsible for the oversight and discipline of the vicar.  The vicar may indeed constitute a risk to children in his new diocese.  But it could be argued that the children were ‘put’ at risk by those who managed the vicar’s transfer, not by the bishop who was only appointed after this happened.

The allegation against the Bishop of Lincoln, of ‘not adequately safeguarding children’, is vague, and much wider than the statutory ground of suspension ‘put[ting] a child or vulnerable adult at risk of harm’.  (Particulars of the allegation are not being disclosed.)  Not every failure of safeguarding procedure will amount to putting a child at risk.

It should also be remembered that suspension speaks to the future, not the past.  It is concerned to protect children from being harmed, not to punish past harm.  A past safeguarding failure will not always establish a significant risk of future harm, if failure is acknowledged and lessons learned.

As its title implies, the 2016 Measure is concerned with (1) the safeguarding of children etc and (2) clergy discipline.  These 2 functions are distinct.  Clergy discipline is particular to the Church.  Safeguarding children is a duty that the Church shares with the secular state.

The power of suspension engaged in this case is concerned with safeguarding (1), not with clergy discipline (2).  As mentioned, it may only be exercised on the relation of the secular authorities, not by the Church of its own motion.  It is an emergency, interim power.  Its purpose is to assist the secular state to fulfill its duty to protect children.  If the feared risk of harm to children proves substantial, it is the responsibility of the secular authorities to take further legal action, under the secular law, to ensure that the children are safeguarded.

Clergy Discipline is addressed elsewhere in the 2016 Measure.  S.5(1) of the Measure introduced a new and specific safeguarding duty.  This provides that bishops and other clergy ‘must have due regard to guidance issued by the House of Bishops on matters relating to … safeguarding’.  S.8(1)(aa) of the 2003 Measure (as amended by the 2016 Measure) now provides that failure to have ‘due regard’ to this guidance now constitutes misconduct.

The Church of England’s internet website refers to no fewer than 18 statements of guidance: 3 ‘policy statements’, 13 ‘practice guidances’, plus ‘Q and As’, and 2 items of ‘joint practice guidance agreed with the Methodist Church’.  It warns that ‘All the policy and practice guidance on this page has been approved by the House of Bishops [under s.5(1)] and must … be followed’.  It suggests that ‘due regard’ to the guidance means that the subject ‘is required to follow it unless there are cogent reasons for not doing so’.

The specific safeguarding duty is recent.  It cannot be imposed retrospectively.  However, there has always been a disciplinary offence under the 2003 Measure of ‘neglect or inefficiency in the performance of the duties of … office‘ (s.8(1)).  At least one case brought under the 2003 Measure indicates that disciplinary tribunals are willing to interpret ‘duties of office’ to include a common law duty to take care (or something resembling it), as well as duties specifically prescribed by ecclesiastical law.  (See ‘Armstrong v Robinson: The Cares of Office‘, filed below in this category.)

The Bishop has not (not yet, anyway) been charged with failure to comply with the s.5(1) duty, or with any breach of clergy discipline.  Any disciplinary proceedings would be subject to the 1 year limitation period, as provided by s.9(1) of the 2003 Measure.

(Websites accessed 18th May 2019.)

Confession: Sacrament, Secrecy and Safety

Church of England Report of the Seal of the Confessional Working Party (March 2018)

The Report discusses the proviso of canon 113 of 1603, which concerns the practice of private confession.

Alone among the 141 canons of 1603, the proviso was not repealed in the 1960s.  It is now somewhat untidily appended to the revised canons.  According to an earlier report, Church and State (1970), the reason for retaining the proviso was a fear that any revised canon might be contrary to the secular law of evidence (the duty of a witness to tell ‘the truth, the whole truth and nothing but the truth’) (pp.58-9).

The proviso of canon 113 states that

‘if any man confess his secret and hidden sins to the Minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we … do straitly charge and admonish him [i.e the Minister], that he do not at any time reveal … any crime or offence so committed to his trust and secrecy …’.

The new Report seeks to address concerns that the 1603 proviso may cause avoidable harm to children, because it prevents confessors from reporting sexual abuse confessed to them, and also protects abusers from justice.

However, as the Report notes, the rule of secrecy in the proviso is not absolute.  The proviso does permit a confessor to reveal ‘such crimes as by the laws of this realm his own life may be called into question for concealing the same …’.

This is a reference to confessions of treason.  Sir Edward Coke held that ‘the privilege of confession extendeth only to felonies … if high treason be discovered to the confessor, he ought to discover it [i.e disclose it], for the danger that thereupon dependeth to the King and the whole Realm’ (p.25)

The proviso is therefore a compromise between canon law and English law.  The famous ‘seal of confession’ comes from canon law (apparently the fourth Lateran Council of 1215).  However, it is limited by English law to a privileged exception that does not extend to the most serious crimes.

‘Privilege of confession’ is indeed a more accurate description of the 1603 proviso than that in the title of the Report.  The proviso is an exception to the general rule that wrongdoing should be publicly tried and punished.  ‘Seal of the confessional’ is a clumsy cultural appropriation from the Roman Catholic Church.  (A confessional is, of course, a box, a fixture or piece of furniture that was probably only introduced into Catholic churches after the break with Rome, and is certainly unknown to English law.)

The Roman Catholic Code of Canon Law 1983 (and its predecessor, the 1917 Code) refers to the ‘sacramental seal’ (sacramentale sigillum, canon 983(1)).  A comparative study of the Roman Catholic law concerning confession may illuminate the current controversy over the 1603 proviso.

The 1983 Code makes clear that penance (now commonly called ‘reconciliation’) is one of ‘the [seven] sacraments of the New Testament, instituted by Christ the Lord’ (canon 840).  It also strongly emphasises the obligatory nature of the sacrament:

‘Individual and integral confession and absolution constitute the only ordinary way by which the faithful person who is aware of serious sin is reconciled with God and the Church: only physical or moral impossibility excuses the person from confession of this type’ (canon 960).

The faithful are required ‘to confess serious sins at least once a year’ (canon 989).  All serious sins must be confessed ‘in kind and in number’, and ‘It is to be recommended … that venial sins also be confessed’ (canon 988).

The Council of Trent held that ‘the absolution of the priest is … not a bare ministry only … but is after the manner of a judicial act, whereby the sentence is pronounced by the priest as a judge‘ (14th session).  The 1983 Code provides that ‘In hearing confessions the priest … acts as a judge as well as a healer and … as the minister of Divine justice as well as of mercy …’ (canon 978(1)).

The confessor’s judicial function is exercised in the internal forum of jurisdiction.  The internal forum is the subject of a helpful commentary by J I Arrieta (Studia Canonica 2007, p.27).  Arrieta makes clear that juridical acts in the internal forum may be either

(1) sacramental (i.e absolution) or

(2) non-sacramental (e.g dispensations, commutations of penance).

The seal only applies to sacramental acts.  Non-sacramental acts are generally confidential, out of respect to the subject’s right of reputation (cf canon 220).  However, the right of reputation is not absolute in a non-sacramental case, so confidentiality may be withdrawn in certain circumstances.

This account indicates a radical difference between Roman Catholic law and English law.  Article 25 is clear that penance and the four other rites ‘commonly called sacraments’ are ‘not to be counted for sacraments of the Gospel … have not like nature of sacraments with Baptism and the Lord’s Supper [the Eucharist], for that they have not any visible sign or ceremony ordained of God’.

Thus the proviso of canon 113 concerning confession cannot be a sacramental seal, since there is no sacrament of confession.  As it is not one of the two sacraments ‘ordained of Christ our Lord in the Gospel’ (Article 25), confession and penance can be no more than one of the ‘rites of the Church ordained only by man’s authority’ (Article 34).

English law is also very clear that confession is always voluntary, entirely at the option of the penitent.  There is no obligation to confess even the gravest of sins.  Sir Lewis Dibdin, Dean of the Arches, observed in the case of Banister v Thompson (1908) Probate 362 that ‘the compilers of our liturgy … in the 16th century … proceeded on a very clearly defined principle.  They asserted the liberty and the responsibility of the individual … laying far greater emphasis on the duties of self-examination and of direct confession of sin to God’ (pp.381-2).

Canon C29 of the revised canons, which is entitled ‘Of the Ministry of Absolution’, continues to observe the 16th century principle.  Baptised persons must ‘confess themselves to Almighty God … that they may receive of Him … forgiveness … seeking forgiveness especially in the general confessions … and in the [general] absolutions … in the services of the Church’ (1).

However, private confession is offered to ‘any who … cannot quiet his own conscience, but requires further comfort or counsel … [to] receive the benefit of absolution … to the quieting of his conscience …’ (2).  It is also offered to ‘a sick person, if he feels his conscience troubled in any weighty matter’ (3). These provisions of canon C29 closely follow those of the Book of Common Prayer.

If private confession is non-sacramental and voluntary, a concession to human weakness, then English confessors cannot exercise any kind of jurisdiction in hearing confessions.  Their function is limited to advice and moral support to a penitent who seeks this.  Any absolution pronounced in the course of a private confession will be the same as the general absolution pronounced in public services.  (Just as Holy Communion is the same, whether administered publicly in church or privately at the sickbed.)

As the Report observes, confession in the Church of England may take place as part of a liturgical rite that resembles the Catholic sacrament (e.g in an Anglo-Catholic parish) or more informally, in the context of a pastoral conversation (cf p.9).  However, this does not justify treating the confessions differently, since they are equally non-sacramental and equally voluntary.

This discussion may suggest the following conclusions:

(1) the privilege of confession in English law is not the same as the sacramental seal in canon law.  The privilege of confession has always been a qualified one.

(2) the strictness of the Roman Catholic law concerning the seal of confession must be understood in the context of the Catholic doctrine that private confession is part of a Divine sacrament, reception of which is obligatory.  English law denies this doctrine.

(3) English confessors act as professional advisers and counsellors, regardless of whether they officiate in a liturgical or in a pastoral context.  They should therefore owe a similar duty of confidentiality to penitents to that owed by their secular counterparts to clients or patients.

(4) For these reasons, it would not be a radical new departure to permit, or even require, confessors to report a well-founded concern that a penitent presents a risk of serious harm.  Such a change of the ecclesiastical law would merely reflect the change of political priorities since the early modern period.  An overriding concern for the safety of the state (from treason) has been succeeded by a similar concern for the safety of children (from sexual abuse).