Church of England’s High Court contempt threat for abuse victims

The Jill Saward Organisation wants to work constructively with the Church of England, other churches and religious organisations to improve the way that victims of abuse and sexual violence within a religious setting are treated.

But working constructively does not mean that we will stand back when we see clear abuses of power – especially when that abuse of power is designed to cover up abuse, silence victims and protect the reputation of the Church or abusers.

In April this year, new paragraphs were inserted into the Clergy Discipline Commission’s Code of Practice which have the effect of silencing victims of abuse – or would have, if the Code of Practice had legal effect. It does not. But to ensure compliance, the Clergy Discipline Commission has added a threat of referral to the High Court to answer an allegation of contempt.

The only contemptuous thing about these new paragraphs is that the Clergy Discipline Commission is trying to get away with this appalling new section.

It is important to remind ourselves of what a Code of Practice is; but let us first start with what it isn’t: a Code of Practice is not law. It has no legal force unless an Act of Parliament (or in the case of the Church of England, a Measure) gives it force and requires compliance with it.

No such power exists in the Clergy Discipline Measure. The only reference to a Code of Practice in the Measure is section 3(3)(b), which says that one of the duties of the Clergy Discipline Commission is “to issue codes of practice and general policy guidance to persons exercising functions in connection with clergy discipline” (my emphasis).

So if a Code of Practice isn’t law, what is it? A Code of Practice, in relation to legislation, is designed to help people understand how to apply the legislation. A Code of Practice cannot be used to create new rules, obligations, responsibilities, or duties. A Code of Practice can only interpret how existing rules, obligations, responsibilities, and duties are to be carried out.

In relation to clergy discipline, the rules, obligations, responsibilities and duties are set out in primary legislation: The Clergy Discipline Measure 2003; and secondary legislation: The Clergy Discipline Rules 2005.

These have been updated from time to time. The government’s legislation website (link above) shows the current wording of the Clergy Discipline Measure; but it doesn’t update Statutory Instruments. The Church of England website has a composite version of the Rules, showing all amendments, including those made last month by the Clergy Discipline (Amendment) Rules 2021.

The Measure and Rules are law. They have to be complied with. The Code of Practice is not law. It cannot introduce new Rules and the Church of England cannot make new laws through the Code of Practice.

The Measure and the Rules – the law – say nothing about confidentiality. Nor does the Measure provide for a referral to the High Court in relation to contempt.

The Clergy Discipline Rules do give a Tribunal Chair the power to refer a person to the High Court for contempt if they ignore an order to produce documents (Rules 28A and 34); and if a person “does or omits to do anything which is a contempt in connection with proceedings before, or in connection with an order made by, the Registrar of Tribunals, the Chair or the tribunal” (Rule 105).

Rule 105(2) states that “Failure to comply with an order shall not be deemed to be a contempt unless the order provides that the person to whom it is directed may be sent to prison, or fined, or both, if the order is not obeyed.”

There is no other reference to contempt within the Rules. There is no general Rule of contempt and no power to refer a person to the High Court for failing to comply with the Code of Practice.

So, having established that a Code of Practice can’t make new rules, what do the new paragraphs say? Allow me to quote verbatim:

Allegations of misconduct under the CDM are private and confidential. This is to ensure that matters are dealt with fairly and that the process is not prejudiced. It extends to complainants, respondents and witnesses.

All matters should be kept strictly private and confidential. This includes written documents and material which, save for legal representatives, should not be shared with third parties.

In particular, individuals (regardless whether or not they are a party) should refrain from making statements, posts, comments or similar on social media, websites, print media or other public fora which in any way reference the detail of the allegation, the individuals involved, or give an opinion as to the merits or otherwise of the alleged misconduct.

Where an allegation has been referred for determination before a tribunal or court, the Chair may certify that an act or omission, in connection with the proceedings or an order, committed by any person is a contempt and refer the matter to the High Court.

Why are they problematic? I hope, having read them, you can answer that question yourselves. But in case you can’t, let me spell it out:

Paragraph 306 introduces a statement which is not supported by the Measure or the Rules. The only reference to confidentiality, if it even is that, is in section 18(3)(c) of the Measure, which states that Tribunal hearings “shall be in private, except that the tribunal or court, if satisfied that it is in the interests of justice so to do or the respondent so requests, shall direct that the hearing shall be in public in which case the tribunal or court may, during any part of the proceedings, exclude such person or persons as it may determine.”

There is no legal requirement for confidentiality of the fact that an allegation has been made or that it is being considered.

Paragraph 307 prevents a victim of abuse (or an accused member of the clergy) from sending CDM-related documents to their MP, a support organisation, a counsellor, their union, or even family or friends who are supporting them.

Paragraph 308 goes even further: this seeks to prevent a person from giving any information to anybody. If this paragraph had the force of law, it would silence the press from reporting that an allegation is ongoing. It would prevent a bishop explaining to a congregation why their minister has been suspended. It would stop a victim from writing about their experience.

In short, paragraph 308 is designed – whether deliberately or by neglect – to silence victims of abuse.

Or it would, if the Code of Practice had the force of law. But it doesn’t – for the reason’s I’ve already set out.

But, never mind that the Code of Practice does not have the force of law; the Church of England can pretend it does – and that is what Paragraph 309 seeks to do with the preposterous threat of a referral to the High Court for contempt.

Remember: there is a power in the Rules to refer a person to the High Court for contempt; but that is where people have not complied with Orders made by the Registrar of Tribunals, the Chair or the Tribunal in a specific case. There is no power to refer an alleged contempt to the High Court in any other circumstances; and certainly no power to do so for ignoring a Code of Practice or for telling people about an allegation.

So what is this paragraph doing in this section?

It is a blatant, flagrant, and egregious abuse of power. The Church of England should not be trying to silence victims.

The Church of England’s Clergy Discipline Commission should know better. It can’t claim ignorance.

The Chair of the Clergy Discipline Commission is a Court of Appeal Judge: The Right Honourable Dame Sarah Asplin DBE.

The Deputy Chair of the Clergy Discipline Commission is another Judge: His Honour Judge David Turner QC, who splits his time between the Crown Court in Chelmsford and the High Court.

Another member of the Clergy Discipline Commission is a senior solicitor: Louise Connacher, the Provincial Registrar of York – the senior legal advisor for the Church of England’s northern province.

The Clergy Discipline Commission also includes amongst its membership two bishops. Let’s look at what those bishop’s have said about the Church of England’s past treatment of victims and survivors, when the Independent Inquiry into Child Sexual Abuse came out in October 2020:

The Bishop of Leeds, Nick Baines, said that IICSA’s report “shines a light on historic failings and shameful behaviour. I am deeply sorry for the hurt and damage caused to survivors and victims. As we seek to learn from the report, we do so with the wellbeing of abuse survivors foremost in our minds”

The Bishop of Gloucester, Rachel Treweek, said that the report “brings together in one place the shocking failures of the Church, not least in often being more concerned with protecting reputation than focusing on the care of victims and survivors of abuse and responding with compassion.”

I don’t want to attack Bishop Nick or Bishop Rachel. I know that both of them are good people and active in working to support victims and survivors; not least Bishop Rachel who worked hard to bring about important changes to the government’s Domestic Abuse Bill earlier this year.

But that begs the question: how and why does a Church that is seeking to do the right thing; that is seeking to learn the lessons from past failings; that is constantly saying that the voices of victims and survivors need to be heard – how and why does such a Church produce new pseudo-rules which have the effect of silencing victims and aiding in cover-ups.

There is no justification in law or practice for paragraphs 306 to 309 of the Clergy Discipline Code of Practice. The Church of England should withdraw them immediately; and Dame Sarah Asplin needs to explain how, as a Court of Appeal Judge, she thought it was appropriate to publish these with the force of a toothless threat of a High Court charge of contempt.