Legal representation to the Bishop

Monday 7 July 2008

The following is part of a legal representation to the Bishop, demonstrating that his view is unsafe and open to legal challenge.

By letter dated 17 January 2008, the Bishop of Ely’s registrar wrote to the incumbent’s solicitor stating that the bishop wished to give him a copy of the Tribunal�s report in person at a pre-arranged date and place. The letter continued ‘The Bishop wishes to explain to you in person the need, as he sees it, for the report to remain confidential while he is considering it’. The letter invited representations on behalf of the incumbent to be sent to the bishop by 14 February 2008.
The incumbent’s solicitor duly attended and spoke to the bishop and gave the assurance sought by the bishop that the report would remain confidential to the Mr Anthony Jeremy (the solicitor), Mr Mark Hill (counsel) and the incumbent himself. Subsequently, Mr Jeremy sought and obtained from the bishop’s registrar permission for the incumbent to disclose the content of the report to his wife, Gillian Ambrose.
There was no mention during the meeting with the bishop of a press release, nor was a copy handed to Mr Jeremy at the meeting as the letter of 18 January 2008 had suggested. The covering letter dated 23 January 2008 which accompanied the hand-delivered report contained the following: ‘The Report will remain confidential and embargoed at least until the Bishop makes his final decision some time thereafter’.
Mr Jeremy then attended upon counsel in his chambers and procured from the incumbent an undertaking in writing in accordance with the limited disclosure authorised by the bishop as enlarged by his registrar. Only after such undertaking was signed did Mr Jeremy disclose the report to the incumbent.
It was therefore with astonishment that those acting for the incumbent later discovered that at approximately 11.30 on the day upon which a copy of the report was handed to Mr Jeremy (and before the incumbent had had sight of it) the bishop, acting through his Press Officer, placed in the public domain certain of the recommendations of the Tribunal and selected passages from the Report. Crucially, these included (but were not limited to) the recommendation that the bishop make a declaration of avoidance, being the key matter upon which the Bishop had purported to seek representations in confidence and upon which he was yet to make a decision.
In the absence of any explanation or apology for the release into the public domain of these matters (contrary to the mutual assurances of confidentiality given at the meeting on 23 January 2008) the incumbent can only assume that such a step was planned, pre-mediated and authorised. It was met with incredulity by those acting for the incumbent, by those acting for the PCC, and by the Provincial Registrar who was secretary to the Tribunal. It has impaired the professional relationship between the incumbent and his legal advisers who have been severely wrong-footed and embarrassed by the unilateral breach of confidentiality on the part of the bishop and the consequent erosion of trust.
Placing the recommendation of the Tribunal so overtly into the public domain has created predictable coverage in the media, including (but not limited to) the national broadsheet and tabloid press, the local news, television and radio media, and the church press. This unilateral and unannounced action by or on behalf of the bishop has rendered the embargo entirely nugatory and has frustrated the expectation of confidentiality.
This amounts to an abuse of process and a violation of the provisions of Article 6 of the European Convention on Human Rights. In consequence of this breach of confidentiality, the bishop has fettered the free exercise of his discretion under section 10 of the Incumbents (Vacation of Benefices) Measure 1977 (as amended). In the event that the bishop decides to execute a declaration of avoidance, the same will be amenable to judicial review in the Administrative Court, a division of the High Court of Justice, as a matter of public law.

Failure of Tribunal to direct itself on the law
The Incumbents (Vacation of Benefices) Measure 1977 (as amended) has been little used in practice, and there is no developed jurisprudence as to its operation. The Tribunal therefore was referred to guidance from Hansard in reports of representations made when the Measure was passed. The Bishop of London, stated that the Measure of 1977 was ‘designed to deal with the situation when, for one reason or another, relationships between an incumbent and his parishioners have completely broken down and it has become impossible for any effective pastoral care to be exercised’.

Furthermore, speaking to the proposed Amended Measure on 16 July 1993, the Bishop of St Albans spoke of General Synod tightening up the provisions considerably ‘by providing that the breakdown of relationship provisions are to apply only “where the situation is impeding the whole mission of the church of England in the parish”. That means, for example, that the legislation cannot be invoked for a trivial dispute or for a disagreement between the rector or vicar and a small minority of the parishioners’ as was the case in Trumpington.

The Tribunal, despite being supplied with copies of the relevant extract from Hansard (Annexe A), failed to take this into account in considering its report. The Tribunal’s approach was flawed and, in consequence, its recommendations cannot be sustained.

No pastoral breakdown
In any event, the Tribunal was wrong to conclude that there was pastoral breakdown in the parish of Trumpington. There was no evidence of pastoral breakdown led by the PCC because the PCC pointedly refused to allege any pastoral breakdown.

The incumbent, through his advisers, had repeatedly sought from the PCC’s lawyers particulars of the pastoral breakdown contended for by the PCC. The following matters are significant:
i.on 9 May 2007, the PCC was ordered by the Chairman to serve ‘a succinct and refined statement of their allegations in a numbered sequence (Annexe B);
ii.on 5 June 2007, in purported compliance with this direction the PCC served a Summary of Issues (Annexe C). This document had been settled by counsel and merits a full reading. Nowhere in this document is pastoral breakdown alleged. Rather, it is a litany of complaints about the incumbent, all of which comprise misconduct within the meaning of section 8(1) of the Clergy Discipline Measure 2003.
iii.the case which the incumbent faced was therefore 97 distinct allegations divided into 10 generic categories. Even these were not fully particularised since they were put forward by reference to document numbers.
iv.these matters ought properly to have been the subject of proceedings under the Clergy Discipline Measure 2003. the time the PCC served its written response on the eve of the hearing (Applicants’ Response to Respondent’s Full Skeleton Argument dated 30 August 2006 � Annexe D), its representatives had woken up to the fact that its case was inadequately formulated, despite being put on notice of this some four months earlier. All that the PCC could do by this time, however, was to attempt to suggest that inferences could be drawn as to the mission of the church by dint of the misconduct alleged against the incumbent. See paragraph 16. Not a single instance was advanced by the PCC as to actual pastoral breakdown, despite the direction of the chairman.
vi.the 1977 Measure requires pastoral breakdown to be proved, not inferred. The incumbent was prejudiced by the PCC’s failure to allege pastoral breakdown and the Tribunal was handicapped in consequence. Save for Canon Thistlethwaite (whose evidence related to a period prior to the incumbent’s appointment) the Tribunal did not summon any witnesses to give evidence. The only evidence which they had was that called by the PCC, and this related solely to clergy misconduct because of the somewhat bizarre manner in which the PCC chose to proceed.
vii.the PCC further fell into error by referring to a breakdown between ‘the Applicants’ and ‘the Respondent’, ie the PCC and the incumbent. (See paragraph 4 of the Response at Annexe D). This is a significant misreading of the 1977 Measure which speaks expressly of a breakdown between ‘the parishioners’ and ‘the incumbent’. The Tribunal appears to have replicated this error, and considered breakdown with the PCC as opposed to the �parishioners� as the Measure requires. In paragraph 131, the Tribunal refers to the incumbent’s pastoral relationship with ‘some of his parishioners’, ie members of the PCC. The Measure, however, is concerned with all of the parishioners as a whole, not a specific clique or cabal.
viii.the consistent evidence of the witnesses was that the mission of the church in Trumpington continued. Each of the PCC’s witnesses, called to the stand, gave consistent answers in cross-examination to the effect that the parish life continued, with services taking place, parish visiting, youth work, Mothers’ Union and the like. The suggestion in paragraph 127 of the Report that only a fraction of the activities of the church continue is not accepted, and does not accord with the evidence. The report refers in paragraph 130 to ‘some recent growth in membership of the church’ which suggests that the Tribunal gave undue weight to the historic position which may have pertained and insufficient weight to that which currently exists.
ix.taken at its very highest, all that the PCC was able to prove before the Tribunal was that there was a fractured relationship between the incumbent and some members of the PCC, which is not ‘pastoral breakdown’ for the purposes of the Measure. It must be between the incumbent and the parishioners as a whole (section 19A) whether church or unchurched. the circumstances it was not open to the Tribunal to conclude, as it did in paragraph 134 of its report, that there had been serious breakdown in the pastoral relationship between the incumbent and the parishioners. None was alleged and certainly none was proved.

Recommendation of avoidance
The Tribunal�s flawed analysis of pastoral breakdown undermines its conclusion that the incumbent was primarily responsible for it. No proper weight was given to the evidence of the witnesses that they put themselves forward for election to the PCC with the express intention of worshipping elsewhere and not contributing to the ministry and mission of the parish of Trumpington. So flagrant and deliberate a dereliction of their functions under section 2 of the Parochial Church Councils (Powers) Measure 1956 merited detailed consideration by the Tribunal. None was given.

Conduct of the PCC
The absence of any recommendation of disqualification in relation to any member of the PCC is surprising in the light of the foregoing. The PCC members all conceded in cross-examination that they are communicants elsewhere and have little, if any, knowledge of the events which are organised in the parish. They have not collaborated with the incumbent in promoting the mission of the church and very few, on their own admission, form any part of the worshipping community at the parish church.

Over the past three months any work with young people in the parish, other than with the choir, has ceased to exist; the organist has given notice. Those elected to the PCC who were not part of the ‘cabal’ described above found themselves effectively excluded from meetings. The PCC agenda was remarkably cryptic, there is still no adequate account of income and expenditure, decisions are made in advance of meetings by a small group, and any challenge to this situation is unminuted. So, in spite of much encouragement from a considerable number of parishioners, the vicar has decided not to take any legal action. Jesus, in the beatitudes, commends the opposite. The Bishop and his senior staff prevented any attempt at reconciliation when this business began, and the PCC refused to continue with mediation either through Bridgebuilders or ACAS.