Clergy Conduct Measure

At its last meeting, the National Safeguarding Panel scrutinised the proposal to introduce a Clergy Conduct Measure (CCM) to replace the Clergy Discipline Measure (CDM). A report is also going to the Church of England Synod being held in York over the coming days.

Background

A Church Working Party was set up in 2019 to consider revisions to the Clergy Discipline Measure following concern about the efficacy of the process. Also in 2019 the National Safeguarding Panel considered the Clergy Discipline Measure and made a number of recommendations in relation to safeguarding (see Blog post June 2019).

The Independent Inquiry into Child Sexual Abuse (IICSA) in its two reports on the Church of England, expressed serious concerns about the operation of the CDM. Indeed the second report made a specific recommendation about clergy discipline and its relationship with safeguarding complaints. During 2021 the National Safeguarding Panel examined the work undertaken by the Working Group and the Ecclesiastical Law Society (see Blog post June 2021).

At this year’s meeting the Panel considered the Working Group’s proposals for a new Clergy Conduct Measure. We were joined for the session by:

• Venerable Mark Steadman, Chief of Staff to the Archbishop of York, member of the Clergy Discipline Working Party and Implementation Group.
• Edward Dobson, Designated Officer under the Clergy Discipline Measure and Senior Advisory Lawyer. Ahead of our meeting he provided us with information on the proposals.

Proposals

The new measure will distinguish between grievances and matters of formal misconduct.

There are no limitations of time on allegations categorised as serious misconduct, but those cases categorised as misconduct will be subject to a 12-month time limit. This can be extended by a judge. Grievances are subject to a 12-month time limit with no opportunity to extend this period.

Complaint procedures will be set out in a Code of Practice which states that all complaints will be placed before a bishop. Provisions have been made for a designated person to administer the complaint on behalf of bishops. Anyone with a ‘proper interest’ can use the Measure to make a complaint and clergy will be able to self-refer.

Regional Lead Assessors will be appointed to assess and determine the categorisation of the complaint as one of grievance, or misconduct. Advice will be available from the Office for Clergy Conduct. A complaint can be assessed as being without substance and can be dismissed. The complainant will have a right to a review.

For cases which are not dismissed, the Lead Assessor would offer an initial view on the nature and route of the complaint. The bishop would then write to the respondent setting out the nature of the complaint. Legal aid will be available in cases of misconduct. The bishop can suspend clergy subject to a serious misconduct investigation and where a threshold has been met, as defined by statutory guidance.

There is a presumption that cases will proceed regardless of other processes such as criminal proceedings unless there is a request for a pause by another organisation. Bishops will be under a statutory duty at diocesan level to offer support to complainants, victims, and witnesses: the detail of this is not yet finalised.

Scrutiny

The Panel asked Edward and Mark a range of questions regarding the proposals.

Complainants’ perspective

The Panel were concerned that complainants reporting abuse have to set out a formal complaint in a document. This does not feel appropriate as reporting abuse is traumatic.

Edward Dobson responded that any person with a proper interest in the case can submit the document. This can include Diocesan Safeguarding Advisors, casework teams and members of clergy and there is no requirement for the victim / survivor to initiate the process directly. The Code of Practice will set this out. The new Clergy Conduct Measure is designed to enable a person with proper interest to raise a complaint to a bishop and have it taken forward. It is recognised that the system should avoid processes that are traumatic for complainants.

The Panel asked for clarification on the help and support that will be available to complainants and whether considerations have been made for complainants with a disability.

It was clarified that there are still consultations on this aspect of the proposal. The implementation group are conscious of considerations around disability. They are keen to hear the views of the Panel and others. The consultation on support is asking three main questions:

• What does support look like when you are going through the process?
• Would a ‘litigation friend’ be useful for those who require assistance?
• Would someone be needed to bring the complaint on behalf of a survivor?

The Panel asked about the differences between different dioceses and the resources that are available to provide support. Some dioceses already have Independent Sexual Violence Advisors (ISVA) but some do not.

Edward Dobson responded that the bishop will be under a statutory duty to provide support, and bound by a code of practice. The expectation is that this will be followed, but compliance may be problematic in certain diocese. Consequently, funding may need to be found to support this requirement. Support for serious cases will be provided centrally to ensure a uniform approach.

The Panel noted that a significant part of the detail of the operation of the new Measure will be included in a Code of Practice. We asked whether the Code of Practice can be amended and updated to ensure the experiences of complainants and other stakeholders are acted upon?

Mark Steadman responded that it is the intention that the new CCM process will enable more flexibility in the system and that the Commission should have the authority to change the Code of Practice with the approval of Synod. This should allow changes to be made more easily than in the current process.

The Panel has previously identified the absence of special measures for vulnerable victims and witnesses as an area of concern. We asked whether these issues have been considered?

Edward Dobson responded that special measures are available in the current system. He has recently prosecuted seven tribunals and special measures were used in a number of those cases. The Rule Committee who will oversee the making of procedural rules for the new Measure will ensure that special measures are explicitly stated in the new rules. The Office for Clergy Conduct will investigate cases under the supervision of a lawyer. Video recording of evidence can be used.

Managing safeguarding risks

The Panel asked about the expectations of bishops in providing support for clergy who are subject of the Measure and how will any safeguarding risks or conflicts of interest be managed? How it is envisaged that safeguarding risk assessments should interface with the Measure?

Mark Steadman said that bishops will have a statutory duty to support the respondent. Good networks of trained supporters are required and this is in the early planning stages. Edward Dobson stated that there has been an increase in the number and complexity of discipline cases. Appropriate pastoral support needs to identified.

Mark Steadman added that the current CDM process does not start until other processes, have been completed. The proposal for the CCM is to remove this requirement. The Commission would not want to cause difficulties within a police investigation but many aspects can be dealt with ahead of the outcome of a criminal investigation. Meg Munn noted that this was a previous NSP recommendation.

Edward Dobson set out the process to date. The proposals have been considered by the House of Bishops and amendments have been received. The implementation group met recently and reviewed six case studies, to test out the proposals against real life situations. The view of the implementation group is that there is intersection between the CCM and core groups that oversee investigations undertaken within the Church. These processes must be compatible. It was noted that one of the cases reviewed had a core group risk assessment that was different to the outcome of the CDM. The CCM should always finish prior to the core group to allow all factors to be considered.

A checklist and guidelines or a dynamic risk assessment were suggested by Panel members.

The Panel sought clarity on situations where clergy behaviour before ordination becomes a safeguarding concern. How will this be dealt with under the Measure?

Mark Steadman responded that that the CCM is a process for those who are ordained. Prior behaviour should be dealt with during ordination selection. If things come to light after ordination that indicate a safeguarding risk, this would warrant examination in a core group.

A query was raised as to what would happen if the prior behaviour was not known before ordination or if there was a failure to disclose relevant information during the ordination selection process. Edward Dobson responded there is jurisdiction to remove or prohibit someone from leading services who has committed a criminal offence and been convicted of that offence before ordination. The implementation group is proposing that this is expanded to allow the bishop to remove the member of clergy from office or prohibit for a wider range of offences than is currently the case. Other measures such as training or supervision could be put in place. However, this is still being considered.

Governance and accountability

The Panel asked who will oversee the Office for Clergy Conduct? How will Lead Assessors be recruited, appointed and trained? How many will there be and who will oversee their work to ensure consistency, transparency and equity of decision making?

Edward Dobson responded that Lead Assessors will come from within church structures and that funding will need to be agreed by the Archbishops’ Council. It is the hope that the Lead Assessor group will share best practice. The intention is for the group to issue a report on an annual basis which will inform updates to the Code of Practice.

The recruitment process has not yet been worked out. Training will be overseen and carried out by the Commission. Most dioceses will have one or two cases a year and there could be up to 10 on a regional basis. The distribution of Assessors will need to be planned against need.

The Panel have been concerned about the lack of clear data in terms of disciplinary matters. We asked how the proposals improve transparency and accessibility?

Edward Dobson stated that he did not agree that the data is limited and that it is published annually through Synod. More data will start to be presented beyond basic statistics and will contain case summaries and details on decisions that were made. The process for collation of data from the provinces needs to be improved. There are data protection considerations. The intention is to publish data on the Church of England website.

The Panel asked about the opportunities for Diocesan Safeguarding Advisory Panels to monitor data on discipline measures related to safeguarding?

Mark Steadman responded that ‘hot spots’ could be identified from CCM data and engagement with the local DSAP may be needed to inform regional training needs and collect learning on how to identify themes and patterns.

The Panel highlighted that IICSA recommended that disciplinary issues which are safeguarding concerns are dealt with independently of bishops. This view is supported by many survivors. How will this be managed?

Edward Dobson responded that no substantive decisions will be made by the bishop. The bishop’s role will be to receive the complaint, offer support and implement the outcome. The Assessor will be independent of the bishop and dioceses. Survivor organisations are being asked for further comment during the consultation.

An independent network of support for complainants will be needed and this is likely to be on a regional basis. It is recognised that complainants are more likely to need professional support while respondents might need pastoral support. It was noted that there are many different ways a person could access support.

It was noted that IICSA recommended that there should no time limitation imposed on safeguarding complaints being raised. The Panel asked how will this be managed under the new proposals?

Edward Dobson responded that the term safeguarding complaint is not used under the CCM proposals and that the proposals consider if there is a conduct issue or not. Failure to comply with safeguarding procedures or refer a disclosure would be misconduct. Abuse would be considered to be misconduct or serious misconduct depending on the circumstances. All allegations that are serious will have no limitation period.

The proposal is for an allegation of misconduct to have a 12month limitation period but this can be disapplied. There is a difference between an allegation that there has been an intentional failure to follow safeguarding processes as opposed to unintentionally failing to follow safeguarding processes. The former might be a capability issue where further training is the appropriate response.

Learning and evaluation

The Panel would like to be able to evaluate how effective the proposals will be as a safeguarding measure. Previously there has been difficulty in getting specific detail in relation to safeguarding cases. What progress has there been with developing the CCM data sets?

Edward Dobson responded that the implementation group were not aware of this being a particular issue. The Commission does not have automatic access to diocesan data. It is hoped that the new system will enable this. The data on the current report shows 14 cases were of a sexual nature towards a child and 11 were towards a vulnerable adult. These cases were not deemed to be a failure to follow safeguarding policy and the Commission would be happy to include this detail in future data sets.

Panel members expressed the view that the consultation on the proposals so far has been inadequate for victims and survivors. There was also concern that the further consultation is limited to specific questions and does not allow the full views of survivors to be taken into account.

Edward Dobson accepted that the consultation to date had been inadequate. He emphasised that survivor input to the development of the system is essential. The June 2022 round of consultation is for a period of four weeks. It consists of three questions on which the implementation group are seeking specific feedback, but consultees are encouraged to raise other points. The process is still in its early stages and the next step will be to take the proposals to Synod. There will be further opportunities for input as the Code of Practice is drafted. Survivor feedback will be sought on the type of support to be provided during the process.

The Panel asked for the implementation group to make it clear that consultees can raise points other than the three questions and emphasised the need for the group to genuinely hear from a representative group of survivors.

Conclusions and recommendations

The Panel recognises that the proposal of a Clergy Conduct Measure is a significant improvement on the Clergy Discipline Measure. Many aspects reflect the Panel’s previous scrutiny findings and feedback from other stakeholders. The Panel noted that further consultations will be taking place and that there is more work to do before the proposals are finalised. The Panel therefore agreed to review the development of the Measure at a future scrutiny session.

Code of Practice

1. The Panel welcomes the proposal that the Commission will be able to amend the Code of Practice. This will ensure that the Code can be amended to reflect learning arising from its application. The Panel would value continued involvement with the Code’s development.

Support

2. The Panel believes it is essential that support for complainants is independent and properly resourced. It should be funded and coordinated centrally and available locally, sensitive to individual needs and able to take account of any disability a complainant may have. Supporters will need training similar to that of Independent Sexual Violence Advisors (ISVAs) and this will require sustainable funding. The Panel is seeking information on how the funding will be provided.
3. The Panel welcomes the statutory duty placed on bishops to provide support for both complainants and respondents. Given the sensitive situation of respondents, a system needs to be established that enables them to access support without needing to request it via their diocese or bishop.
4. The Panel welcomes the introduction of a litigation friend at tribunals and also supports the continued use of special measures for victims and witnesses.
5. The Panel endorses the proposal that the Clergy Conduct Measure should progress concurrently with other capability, civil and criminal investigative processes, provided that to do so does not compromise any other investigation.
6. The Panel were concerned that where the ‘Church’ locally decides not to take a complaint through the Clergy Conduct Measure route, there may be a denial of access to justice for the complainant. Clarity should be provided as to whether Diocesan Safeguarding Advisors and core groups hold ‘proper interest’ to raise complaints on behalf of complainants in such situations.
7. The Panel notes the importance of the Office for Clergy Discipline in the process and would like to see the plans for resourcing this Office.

Data

8. The Panel recommends that safeguarding cases should be specifically identified within the data collected regarding the use of the Measure. This should be shared with Diocesan Safeguarding Advisory Panels and the National Safeguarding Team to inform preventative safeguarding activity.
9. The dataset on the Measure should be further informed by consultation with survivor groups.

Consultation

10. The outcome of the June 2022 consultation event focusing on survivor support measures should be shared with the Panel.
11. The Panel are concerned with the way survivor groups have been consulted to date and recommend significant improvements to ensure there will be confidence in the Measure.

Time limits

12. The Panel are concerned at the proposal to apply time limits for safeguarding cases that are judged not to meet the threshold of serious misconduct. These concerns are informed by:
    - Survivor feedback;
    - The uncertainty on whether the proposals fully address IICSA recommendations;
    - The potential for introducing a perverse incentive to categorise all safeguarding concerns as serious misconduct, in order that they can be considered.

The Panel remains of the view that there should be no time limit for any safeguarding allegation and asks that the Implementation Group note and respond to this feedback.

Next Steps

13. The Panel further considers the progress of the Clergy Conduct Measure in 2023.