Safeguarding and the Rule of Law

by Philip Jones

‘Safeguarding is a very important matter, but it does not trump Church law’ (Lord Sentamu).

‘No Church law excuses the responsibility of individuals not to act on matters of a safeguarding nature’(J Humphreys, Independent Learning Lessons Review, 11^th May 2023, para 16.3.16).

Baron Sentamu of Lindisfarne and Masooli was Archbishop of York and Primate of England from 2005 to 2020.  Before entering holy orders he had a distinguished legal career in the High Court of Uganda – a dangerous occupation under the despotic regime of Idi Amin.  The future Archbishop was imprisoned and tortured.  It was not the last time that he would suffer for bearing witness to the rule of law.

One must keep a sense of perspective, of course.  As the late Thomas Cromwell might have said, this is not Uganda, this is England!  Archbishop Sentamu was granted the customary life peerage on his retirement.  He still holds this at the time of writing.  He was also granted the customary permission to officiate (‘PTO’) from his local bishop.  The PTO enables retired clergy to pray and preach in church without holding a specific ecclesiastical office.

Lord Sentamu’s PTO has now been revoked by his local bishop.  This means that the erstwhile Primate of England can no longer perform even the humblest ecclesiastical duty in his own diocese of residence.

The reason given for this degradation was a ‘safeguarding matter’ that arose in another diocese within the Province of York when Lord Sentamu was Archbishop, and which was the subject of the review cited above.  Archbishop Sentamu had declined to intervene in the safeguarding matter.  He later rejected the reviewer’s criticism of his non-intervention and declined to apologise.

The common law jurisdiction of an Archbishop is stated by canon C17(2)

‘The Archbishop has throughout his Province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation,  jurisdiction as ordinary …’.

This makes clear that common law metropolitical jurisdiction is not the same thing as ordinary authority.  The Archbishop’s jurisdiction over the Province is not analogous to the authority of the bishop (and archdeacons) within the diocese.  The Archbishop is primate, i.e  the first bishop of the Province, primus inter pares, first among equals, but no more.

Thus the Archbishop may not intervene in another diocese on a routine or discretionary basis.  To do so would be to exceed his jurisdiction.  Metropolitical jurisdiction is limited.  ‘To correct and supply the defects of other bishops’ means that the Archbishop should intervene only when the diocesan bishop cannot cope, or cannot be trusted.  It is a jurisdiction of last resort.

Canon C17(2) is a civil jurisdiction.  A bishop’s alleged ‘defects’ may form the basis of a disciplinary complaint, a quasi-criminal and penal matter.

The Archbishop’s disciplinary jurisdiction over other bishops is now conferred by the Clergy Discipline Measure 2003.  This statutory jurisdiction, it is true, much more nearly resembles that of a diocesan bishop over his clergy.  S.10(3) provides that ‘references in … this Measure to the bishop … shall, in the case of proceedings against a bishop … be construed as a reference to the Archbishop …’.

If a complaint is made against a bishop by a person ‘who has a proper interest in making the complaint’, that complaint must be ‘laid before’ the Archbishop.

The Archbishop then decides what is to be done with the complaint.  There are a number of possible courses open to him.  He can dismiss the complaint, or take no action on it, or attempt to conciliate the complainant and the bishop.  If the matter is sufficiently serious, the Archbishop will ‘direct that the complaint is to be formally investigated’ (s.12), which may result in a court case and a penalty for the accused bishop.

Lord Sentamu correctly pointed out that the Archbishop’s jurisdiction, both under canon C17(2) and under the 2003 Measure, is ‘quasi-judicial’.  This demands impartiality, ‘ensur[ing] that an Archbishop is not simultaneously actively involved in handling a matter which subsequently becomes a basis for complaint’ (personal statement).  To intermeddle in such a matter would both exceed the Archbishop’s common law civil jurisdiction and compromise his statutory disciplinary function (by giving an appearance of prejudice).

The treatment meted out to Lord Sentamu follows the melancholy cases of the late Bishop George Bell, and of the former Bishop of Lincoln.  Bishop Bell was the subject of an uncorroborated complaint of sexual abuse made more than half a century after his death, which was initially upheld by a Church inquiry.  The Bishop of Lincoln suffered 20 months’ suspension from office following a suggestion that he ‘would present a significant risk of harm by not adequately safeguarding children’.

The present Archbishop of Canterbury was closely involved in both cases, as they arose in the Southern Province.  (Nobody could accuse him of not intervening.)  Yet in both cases, he ended up belatedly apologising for his conduct thereof (statements 17/11/2021 and 01/02/2021).  Thus one Archbishop is required to apologise for his interventions in diocesan cases, while another Archbishop is sanctioned when he refuses to apologise for not intervening!

The reviewer’s attitude to the law, as quoted above, was rightly described by Lord Sentamu as ‘disturbing’.  It may indicate a risk of the safeguarding industry becoming a law unto itself.  Against safeguarding, like necessity, there is no law.  But if the law is ignored, safeguarding inquiries may degenerate into kangaroo courts, unjustly destroying careers and reputations.

(All websites accessed today. There is an account of the former Bishop of Lincoln’s case in blogpost ‘Safeguarding and Suspension’, filed below under category ‘Clergy Discipline: Particular Cases’).