Safeguarding and Suspension: The Case of the Bishop of Lincoln
by Philip Jones
Safeguarding and Clergy Discipline Measure 2016
The Archbishop of Canterbury has recently announced that
‘ Following information provided by the police, I have suspended the Bishop of Lincoln …
 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 …
 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.)