By Simon Bass,
The Law of Unintended Consequences has been busily at work within the Church of England over the last few months. It concerns the ancient ‘Freehold’ tenure under which clergy used to be appointed to hold office within the church, and the unintended consequences it may have for proper child safeguarding, once it becomes known that a particular cleric poses a significant risk of harm to children.
To explain. Despite some high profile – and inexcusable – historic examples of abuse and the failure to adequately deal with these, the Church has made huge strides in safeguarding over the past few years. This is best seen in All God’s Children and the clear standards it sets. Specifically, it insists that if anyone working with children is suspected of abuse he or she should be suspended immediately. This appears straightforward enough.
However, a problem arises when the anomaly of the Freehold rears its ugly head. Freehold was designed to give an incumbent independence, in particular preventing his removal by his bishop for anything other than for gross immorality or total pastoral breakdown.
But the system is deficient because it fails to provide any mechanism for dismissing clergy when their performance is seriously inadequate, but when they have not committed a disciplinary offence covered under the Clergy Discipline Measure. This is important because the unintended consequence of freehold tenure is that it can create a legal impediment that prevents a diocese from precluding any such cleric from undertaking pastoral duties.
It is a problem which is, or should be, on the wane, for under the Ecclesiastical Offices (Terms of Service) Measure 2009, many Anglican clergy in the Church of England – and all new appointments – hold their Ecclesiastical Offices under what is known as “common tenure”, which is much more in line with national employment law. Time’s fell hand means that Freehold is now withering fast, but a number in ministry, including senior clerics, still hold it.
A key practical difference between Freehold and common tenure is that the latter includes a Capability Procedure, in line with good employment practice in other walks of life. The Procedure places the emphasis upon encouraging clergy to improve. If they don’t, it may as a last resort lead to removal from office, but only after the individual has been given plenty of opportunities to improve his or her performance. This measure may not, however, be used against those with Freeholds.
So what can be done when safeguarding concerns arise about a Freeholder? The Interim Report by the Archbishop’s Chichester Visitation, published on 30 August, called for the Guidelines for the Professional Conduct of the Clergy to be amended, forcing clerics to undergo a safeguarding assessment at the direction of the bishop and changing the law to make the Guidelines applicable to Freeholders, too. Given the importance of this issue, the Report’s authors expect that it will be addressed by General Synod.
But whatever the mechanism employed, let us be quite clear about what must be done, every time. Clergy suspected of abuse must be suspended immediately. This is a neutral act, undertaken in the best interests of all parties, having at its heart the protection of the vulnerable. Suspension should remain in place until after the statutory agencies have satisfactorily investigated the matter, and the Church authorities have then undertaken the necessary disciplinary process.
Whilst suspended, moreover, the cleric should not be permitted to act in any way, or to dress in any garment, which might imply they are an official of the church. This is line with the same strict rules soldiers must adhere to about when they should wear uniform and when civvies, because of what their dress implies.
Society increasingly expects those in senior positions to be accountable, both for their own actions and for those for whom they are responsible. So the High Court has held that the Catholic Church, or its bishops, may be liable in law for the wrongs committed by one of its priests. This is because priests have enough of a “close connection”, enabling the legal doctrine of vicarious liability to hold, as the priest was given “the premises, the pulpit and the clerical robes.”
Until then, the Church had argued that, because priests “hold an office”; they were not employees of the Church as such but were in effect self-employed. It thought it could not, therefore, be vicariously liable for their acts or omissions.
This judgment may have profound financial consequences for the Roman Catholic Church in the UK.
Whatever may be the theological and ecclesiological niceties of clergy independence, they are entirely lost on the general public. The man and woman in the street will instead want to be sure that the church is at all times acting properly to protect the children in its care. And it is up to the Church of England, together with every other church and denomination, to prove to us that they are.