IICSA: Some legal views

Evidence from “a venerable ecclesiastical lawyer”

On 13 March, the IICSA inquiry on the extent of any institutional failures to protect children from sexual abuse within the Anglican Church heard evidence from the Revd Canon Dr Rupert Bursell QC (referred to as “Dr Bursell” by Ms Fiona Scolding QC in the transcript and in this post) and others. Dr Bursell’s evidence is on pages 26 to 98, inclusive, of the Day 7 Transcript of the proceedings; some of the legal issues explored in this evidence session are summarized below.

“Due regard”

At the end of her questioning, Ms Scolding explored the legal meaning of to have “due regard”, which is assumed by some to introduce a non-obligatory element into the Clergy Discipline Measure (CDM). She suggested that the phrase meant one “had to follow the relevant provision unless there were cogent reasons not to do so”, a meaning which had been clarified in a number of Supreme Court/Appellate Court judgments.

After indicating that he had spoken to Adrian Iles regarding the exact meaning of the phrase in the CDM, Dr Bursell said:

“Of course it is imperative that people know that it means that there must be cogent reasons for reporting, and, frankly, in safeguarding circumstances, I can think of few reasons which would be cogent enough for you to ignore it.

“All I can say is that, in the practice guidance which is currently coming out in printed form, it is set out not always in footnote, it is better in the text itself, and I think the most recent one it is in the text, making it clear what it means, and certainly in the C4 training that I received last Monday, it was made abundantly clear. So hopefully that is being addressed”.

[95/8 to 99/16]

Seal of the confessional

Ms Scolding suggested that the Inquiry had a paper that Dr Bursell wrote for an ecclesiastical journal about this matter. However, he indicated that he wrote the paper in question for the commission appointed by the House of Bishops to look into the doctrine and legal aspects of the seal of the confessional, the report of which is fairly imminent. [Note: Dr Bursell did write a paper on The Seal of the Confessional, but this was some time ago: Ecclesiastical Law Journal [1990] 2, (7), 84-109].

He explained that the Legal Advisory Commission was asked to advise the House of Bishops about the position and it couldn’t actually come to a common mind. Hence his communication to that commission. After explaining the nature of auricular confessions, he said:

“My belief is that there should be no seal of the confession in relation to child sexual abuse. There is not in relation to terrorism, whether the Anglo Catholics like it or not, and whether they are aware of it or not. But the relevant part of the opinion of the Legal Advisory Commission is somewhere in these papers, and you will see that they point out two sections of the Terrorism Act which actually says — for example, in relation to money laundering, there’s no confidence, such as the seal of confessional, is an excuse, and I can’t see why that should not apply to child abuse.

He later said:

“I believe that the church ought to amend its Canon so that, at the very least, it does not apply to the sexual abuse of children. I think I would just say “any abuse of children”, but, for present purposes, sexual abuse of children.

“There is a problem here because the law that is presently relied upon is a 1603 Canon and merely a proviso. When the whole Canons were amended in the 1980s and 1990s, there was an attempt to revise the Canon in relation to the seal of the confessional, but the church apparently was advised that this was politically unacceptable, as far as parliament was concerned. It was unlikely to get past parliament that there’s a seal of the confessional.

“Therefore, the proviso was left in place. I frankly think that if there were an attempt now to legislate through the church in relation to it, it would run into exactly the same problem, which is why I believe that government should be passing an Act of Parliament imposing a duty, particularly on the clergy, but actually on other people as well, to notify the relevant authorities – social workers and/or the police – of any suspicions or actual abuse of children. That would be binding on the Church of England, just as the Terrorism Act is, because the Anglican Church law is part of the general law of England, whereas the Roman Catholic Canon law is not”.

[76/1 to 81/24]

Dysfunction in the Chichester Diocese, resulting from differences in churchmanship

Ms Scolding sought an explanation of Dr Bursell’s comment “It is my belief that dysfunction within the diocese, coupled with [two very strong opposing views so that the middle-of-the-road churchmanship was squeezed out]”, to which he said:

“…We had a certain number of representations that the middle-of-the-road – those holding middle-of-the-road churchmanship, which would tend to be those who supported the ministry of women, were being left out of it. It meant that the concentration was on this disagreement fundamental to the priesthood and taking the concentration away from the safeguarding matters which were equally, if not more, important – no, were more important”.

With regard to the radical change of culture which the commissaries believed needed to occur was primarily in relation to the absolute necessity of placing safeguarding at the forefront of the diocesan agenda, Dr Bursell noted:

“I think this view goes outside the church. Certainly when I was a judge, I found the same sort of problems dealing with sexual abuse cases. But as far as the church was concerned, I’m sure it’s a matter of training, I’m sure it’s a matter of teaching coming down from the top, but also from the theological colleges”.

[42/3 and 44/19]

Reservations concerning the CDM

Although important changes had been made to the Clergy Discipline Measure in 2016, Dr Bursell had some residual concerns:

“It’s too cumbersome. I have come to the conclusion, somewhat reluctantly, that individual bishops should not actually have any participation in the machinery. They never did so before the coming into the effect of the 2003 measure, and I can’t see why it is necessary that they should now. Indeed, I know a number of diocesan clergy who prefer not to.

“There is a preliminary enquiry. It seems to me that, if you have been abused by a cleric, it must be very difficult to have confidence in what is going forward if a cleric is going to be involved, at whatever level. I’m not querying their bona fides, I just don’t think that that is something that is likely to be. I think there are other problems. I think that when there is an abusive cleric, it may well be that there are other problems in the parish at the same time and there may become a muddle, certainly pressures to bear, particularly on the diocesan bishop, for other reasons to get the cleric out rather than dealing with the discipline, which should be entirely separate and should go forward.

“…Also, there is a problem which has only fairly recently arisen, and it may be a bit technical, but forgive me, at the preliminary enquiry stage, the diocesan registrar has to advise the bishop whether there is a sufficient threshold for the complaint to go forward. It has to be more than trivial.

“In a recent lecture by the deputy president of the Clergy Discipline Commission, the deputy president, who together with the president filters it yet again before the matter actually comes before the tribunal, has given a different threshold, namely, the matter should only go forward if it is so serious that the cleric might be removed from office: a rather higher test.

“But the deputy president is apparently – I don’t know about the president himself – applying a different rule. That seems to be dysfunctional. But quite apart from that, I can envisage a case where a cleric might not, for example, have undergone the safeguarding training that he or she is required to undertake; that therefore a complaint is brought under the Clergy Discipline Measure. It seems to me that a rebuke, certainly the first time, would probably be the right penalty. But under the higher threshold, that wouldn’t be. That seems to me, frankly, ridiculous”.

[The lecture referred to appears to be the Ecclesiastical Law Society London Lecture Practical Aspects of the Clergy Discipline Measure by Sir Mark Hedley, Deputy President of the Tribunal and Chancellor of the Diocese of Liverpool, on 11 October 2017].

[50/12 to 54/12]

The Carlile Report

With regard to his submission to the IICSA on the difficulty that arises in relation to fairness in respect of posthumous allegations, Ms Scolding noted that he was of the view that the church does not seem to handle such situations well “… and [he] suggest[ed] that the Archbishops’ Council should set up a separate body to provide guidance and … to assist those dioceses … in the future”.

However, this was written prior to the publication of the Carlile Report, on which Dr Bursell said:

“I disagree with Lord Carlile about confidentiality clauses. I think that’s entirely contrary to all good practice.

“I’m sure the church is right [in sharing this approach]. But these problems do arise in relation to non-recent sexual abuse and there is a duty of fairness in relation to the person who is deceased and is accused. In effect, one almost needs a devil’s advocate to act on behalf of the deceased person, it seems to me”.

“I don’t think they should be on the core group. I think it should be separate. Otherwise, there’s going to be a conflict of interests somehow”.

[On the confidentiality issues, the Church did not accept recommendations 32 and 33,

 “32. In cases where, following a proper and adequate investigation, they are settled with admission of liability, there should be a presumption that the perpetrator’s name will be published together with a description of the conduct concerned (unless the complainant objects on reasonable grounds).

33. Where as in this case the settlement is without admission of liability, the settlement generally should be with a confidentiality provision: there should be a presumption that the name of the alleged perpetrator should not be published, unless the alleged perpetrator agrees that it should be, or the circumstances are held to be wholly exceptional (on reasonable grounds).”]

[92/18 to 94/1]

Spiritual abuse

Asked his understanding and concerns regarding “spiritual abuse”, Dr Bursell defined this quite concisely, saying “It’s the manipulation of the person concerned by reason of the ordained status and/or teaching of the abuser”.

He agreed that in respect of both children and vulnerable adults, there needs to be a clear definition and clear disciplinary action taken, adding “definition I know is difficult and I know it’s being fought by the evangelical wing because they feel it may impinge upon them. I can’t see why it should, if it’s sensibly defined”.

[84/12 to 85/14]

Comment

Dr Bursell’s evidence is important since, in addition to his involvement as one of the commissaries of the Archepiscopal Visitation of Chichester, 2011-2013, he has wide experience as an ecclesiastical and circuit judge and as the Chancellor of the dioceses of Durham, St Albans, Bath and Wells, and Oxford. He also has first-hand experience of safeguarding training and its development.

Footnotes

[i] References in this post relate to the Day 7 Transcript and are in the form [page number/line number].

[Ii] Although Ms Scolding referred to Dr Bursell as “a venerable ecclesiastical lawyer”, Dr Bursell replied “I’m not sure I accept “venerable”. [23/27]. Earlier, Ms Scolding summarized his expertise and experience, summarized [25/25 to 26/23], and indicated that he, himself, was a victim of child sexual abuse, albeit not clerical sexual abuse, [29/1 to 3]. 

[iii] During an Archepiscopal Visitation, the jurisdiction of the bishop within the diocese is withheld for the relevant period in relation to the relevant topic of the Visitation. Made under Canon C17, this was the first such visitation since the 1890s. A summary is given in Thinking Anglicans herealthough many of the links are now broken following the revision of the CofE web site. 

Cite this article as: David Pocklington, "IICSA: Some legal views" in Law & Religion UK, 15 March 2018, http://www.lawandreligionuk.com/2018/03/15/iicsa-some-legal-views/

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