“Misconduct in Public Office” revisited

Publication of An Abuse of Faith – the independent report by Dame Moira Gibb into the Church’s handling of the Bishop Peter Ball case – prompted a number of comments concerning possible follow-up actions in relation to Lord Carey’s involvement. 

Citing The Guardian, its religious affairs specialist Andrew Brown, and Richard Scorer on the NSS website,  Fr Alexander Lucie-Smith  suggests in the Catholic Herald that the debate on abuse has become more mature and calm: “[q]uite absent…is any attempt to blame the current Archbishop of Canterbury, or overblown claims that the whole institution of the Anglican Church is somehow corrupt, let alone calls for the immediate arrest of Lord Carey and others.

This post focusses on two of the aspects raised that have been raised – “misconduct in public office”, and membership of the House of Lords.

Background

In his piece The Church can’t be allowed to carry on marking its own homework posted on 25 June 2017, Richard Scorer – the Head of Abuse at Slater and Gordon and NSS director – said [our emphasis]:

“An unavoidable question is whether, in concealing evidence of Ball’s criminality, senior figures in the Church of England, including [Lord] Carey, may have committed criminal offences, the most obvious one being misconduct in public office. The Ball case itself established that a Church of England bishop is a public official. Misconduct in public office is defined as “a public officer wilfully neglecting to perform his duty and/or wilfully misconducting himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification”.

In a subsequent letter to The Times (£, but available via Secularism UK‏ @NatSecSoc), Richard Scorer and others suggested that following the Gibb report:

“…three issues require attention. First the police must investigate whether Lord Carey of Clifton deliberately concealed evidence. If so must forfeit his right to sit in the House of Lords…Second, safeguarding in the Church of England requires independent oversight. Finally, we need a mandatory reporting law that knowledge or suspicion of abuse be reported to the authorities”.

Comment

Public Office

On 10 November 2014, we considered the concept of “public office” in the context of bishops in the Church of England; a much-extended version was published in the Ecclesiastical Law Journal with a more specific focus on the prosecution of former bishop Peter Ball, (Frank Cranmer and David Pocklington, “Peter Ball and Misconduct in Public Office”, [2016], 18 Ecc L J (2) 188-195). The primary focus was the status of bishops under the Equality Act 2010, although we also considered this in relation to the criminal law. In our latter considerations we concluded:

“So is ‘the office of diocesan or suffragan bishop’ a public office for the purposes of misconduct or is it not? If any conclusion from the prosecution of Peter Ball is possible at all – apart, that is, from the obvious one that he is a seriously bad man – it would appear to be this: that a diocesan or suffragan bishop in the Church of England does not occupy a ‘public office’ for the purposes of the Equality Act 2010, as amended, but does appear to occupy a ‘public office’ for the purposes of criminal prosecution under the common law. Certainly, Wilkie J seemed in no doubt about the latter, [R v Peter Ball (Sentencing Remarks) [4 & 8].

Since Ball pleaded guilty to the misconduct charge, the precise reach of the criminal law in this area was not tested – though it should be noted that his sentence on the misconduct charge was heavier that his sentence for the separate counts of indecent assault. The case does, however, raise an issue about the precise scope of the offence, given that the impugned conduct need not be criminal in order to attract the charge.

As to the circumstances in which the common law offence should be prosecuted, the House of Lords has held that ‘good practice and respect for the primacy of statute … require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise’. The CPS Guidance states that the charge of misconduct in public office should be considered only where:

[i] there is no suitable statutory offence for a piece of serious misconduct (such as a serious breach of or neglect of a public duty that is not in itself a criminal offence);

[ii] there was serious misconduct or a deliberate failure to perform a duty owed to the public, with serious potential or actual consequences for the public;

[iii] the facts are so serious that the court’s sentencing powers would otherwise be inadequate.

The Law Commission is currently undertaking a project on Misconduct in Public Office and launched its second public consultation on the law of misconduct in public office on 5 September 2016. A Working Party of the Ecclesiastical Law Society comprising: HHJ Peter Collier QC, Vicar General of the Province of York and Honorary Recorder of Leeds; Frank Cranmer; Professor Mark Hill QC, Chairman, Ecclesiastical Law Society; Sir John Saunders, former High Court Judge, submitted a response. This includes inter alia comment on the Peter Ball case and the broader considerations of the relation of the criminal offence to the Church of England. The consultation period is now closed and the responses are being analysed and its final report is due to be published in 2017.

Membership of the House of Lords

Church of England bishops in the Lords cease to be Lords Spiritual when they retire at 70 or before, cease to be diocesan bishops under S5 Bishoprics Act 1878 (as when the Bishop of Truro will be translated to the Bishop at Lambeth in September this year), or step down for other reasons. When Lord Carey retired as Archbishop of Canterbury on 31 October 2002, he ceased to be an ex officio Lord Spiritual. On the following day, however, he was created a crossbench life peer as Baron Carey of Clifton. The Life Peerages Act 1958 entitles the holders to seats in the House of Lords during the life of the person on whom it is conferred, unless disqualified by law, S3 House of Lords Reform Act 2014.

From 1705 until the House of Lords (Expulsion and Suspension) Act 2015 came into force on 26 June 2016, the House of Lords had no power, by resolution, to require that the writ of summons be withheld from a Member otherwise entitled to receive it, and it was not within the power of the House by resolution to expel a Member permanently, although it did possess the power to suspend its Members for a defined period not longer than the remainder of the current Parliament, here. This changed under the 2015 Act, and under S1(4) Expulsion and suspension of members of the House of Lords,

“A resolution passed by virtue of subsection (1) must state that, in the opinion of the House of Lords, the conduct giving rise to the resolution— (a) occurred after the coming into force of this Act, or (b) occurred before the coming into force of this Act and was not public knowledge before that time”.

To date, no such resolutions have been made.

The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords gives further details of the procedures relating to membership of the House of Lords. On 26 June we reported that the Bishop of Oxford had issued a statement indicating that he had met with Lord Carey following the Archbishop’s letter to him, and in light of Dame Moira Gibb’s review into the Peter Ball case, Lord Carey has resigned from his role as honorary Assistant Bishop in the Diocese of Oxford. Similarly, Lord Carey might voluntarily relinquish his membership of the House of Lords. He would continue to be a Life Peer but without the ability to sit in the Upper House.

Independent oversight and mandatory reporting

These are beyond the scope of the present post, but we note that in addition, the issue of the confidentiality of the confessional is quite likely to be raised again.

Cite this article as: David Pocklington, "“Misconduct in Public Office” revisited" in Law & Religion UK, 30 June 2017, http://www.lawandreligionuk.com/2017/06/30/misconduct-in-public-office-revisited/

2 thoughts on ““Misconduct in Public Office” revisited

  1. Pingback: Archbishops’ Guidelines on “Choosing Bishops” | Law & Religion UK

Leave a Reply