Winchester Dodges the Issues
Over three working days ago I asked the spokesperson for Winchester Diocese a very simple question. Three days later I still haven’t had a reply, and that’s probably because the very simple question I asked strikes to the heart of the conflict between the Bishop of Winchester and the Church of England in Jersey.
I emailed Luther Pendragon (the rather expensive PR company representing Winchester Diocese) this simple question.
Where the Terms of Reference state that Dame Steel “shall have the same authority to seek information from a person as if the Bishop of Winchester were seeking that information”, is she acting with the authority that the Bishop of Winchester has under (i) the Canons of the Church of England, (ii) the Canons of the Church of England in Jersey, (iii) both or (iv) neither? If (iv), where is the source of authority?
As yet Winchester Diocese have not answered that question and in not answering they demonstrate that they recognise that the response they give is vitally important. The golden rule of PR after all is to not answer the questions that you don’t want to have a public position on, because that public position might tie you down.
So why is the question so unanswerable for the Diocese? Well simply put, depending on the answer the Diocese either shoots Dame Heather Steel’s investigation in the foot, or they shoot themselves in the foot. Let me explain. The Church in Jersey has a separate form of Canon Law under which it operates as opposed to the Canon Law of the Church of England. This is important, because Canon Law is the source of authority for any official in the church, just as in the same way the Civil and Criminal law of England and Wales (and equally the States of Jersey) is the authority for the government of England (and the judiciary and forces of law and order) to operate within the borders of England and Wales (and equally for Jersey which has its own law).
So where do Bishops derive their authority from (remembering that the Terms of Reference for Heather Steel state she “shall have the same authority to seek information from a person as if the Bishop of Winchester were seeking that information”)? Well under the Canons of the Church of England the Bishop’s authority lies in Canon C14. This reads,
3. Every person who is to be ordained priest or deacon shall first take the Oath of Canonical Obedience to the bishop of the diocese by whom he is to be ordained in the presence of the said bishop or his commissary, and in the form following:
I, A B, do swear by Almighty God that I will pay true and canonical obedience to the Lord Bishop of C and his successors in all things lawful and honest: So help me God.
4. Instead of taking the aforesaid Oath of Canonical Obedience a solemn affirmation may be made in the circumstances mentioned in section 5 of the Oaths Act 1978 in the form following:
I, A B, do solemnly, sincerely and truly declare and affirm that I will pay true and canonical obedience to the Lord Bishop of C and his successors in all things lawful and honest.
5. Every bishop, priest or deacon who is to be translated, instituted, installed, licensed or admitted to any office in the Church of England or otherwise to serve in any place shall reaffirm the Oath of Canonical Obedience or his solemn affirmation taken at his ordination or consecration to the archbishop of the province or the bishop of the diocese (as the case may be) by whom he is to be instituted, installed, licensed or admitted in the presence of the said archbishop or bishop or his commissary in the form set out in this Canon.
The authority of the Bishop derives itself from the act of submission (“I will pay true and canonical obedience”) performed by the priest or deacon, placing him or herself under the authority of the Bishop.
The Canons of Jersey also have similar sections, C14 and C16.
C14 OF THE OATHS OF OBEDIENCE
Every person who is to be ordained priest or deacon, or to be instituted to any benefice, or to be licensed either to any lectureship, preachership, or stipendiary curacy, or to serve in any place in the Island shall first take the Oath of Canonical Obedience to the Bishop in the presence of the Bishop or his commissary, and in the form following:
“I, A B, do swear by Almighty God that I will pay true and canonical obedience to the Lord Bishop of Winchester and his successors in all things lawful and honest: So help me Godâ€.
…
C16 THE BISHOP OF WINCHESTER
1. The Bishop is the chief pastor of all that are within the Island of Jersey, as well laity as clergy, and their father in God; it appertains to his office to teach and to uphold sound and wholesome doctrine, and to banish and drive away all erroneous and strange opinions; and, himself an example of righteous and godly living it is his duty to set forward and maintain quietness, love, and peace among all men.
2. The Bishop has within Jersey jurisdiction as Ordinary except in places and over persons exempt by law or custom.
3. Such jurisdiction is exercised by the Bishop himself or by the Dean as Commissary General in accordance with the Letters Patent and the Bishop of Winchester’s Commission.
Now on the surface these two sections are very similar to the English versions, and that is true, but the fact that they are similar but still exist in two different forms gives away the legal subtlety. Simply put, on English soil the Bishop of Winchester derives his authority to act from the English Canons, on Jersey soil he derives them from the Jersey Canons. And this is absolutely critical to the current crisis and also explains the effective refusal of the Diocese to respond to my question.
If the response had been “Dame Heather Steel is operating under the authority of the Bishop derived by English Canon Law” then it would be perfectly acceptable for the Church on Jersey to refuse to co-operate with the investigation. It would be the equivalent of the French setting up an investigation into something that happened in Yorkshire and demanding that the Geoff Boycotts of this world comply with the terms of the investigation. That’s never going to happen.
However, if the response had been that “Dame Heather Steel is operating under the authority of the Bishop derived by Jersey Canon Law” then the Diocese would have bound itself to any outcome of the investigation having to be handled under Jersey Canon Law. And here’s the rub – not only is the church disciplinary process utterly different under Jersey Canon Law then English Canon Law (English Canon Law has the Clergy Discipline Measure, Jersey explicitly is NOT subject to the Clergy Discipline Measure and instead has its own ecclesiastical court), the whole underlying issue around the suspension of the Dean and the way he was “suspended” is exactly to do with these lines of authority. It’s not so much a question of “who is ultimately in charge” (because the answer to that question under both sets of Canon Law is “the Bishop”) but rather “how does the Bishop get to be in charge?”
The Diocese is caught between a rock and a hard place. If it wants to assert the authority of the Bishop through English Canon Law then it is pretty well cutting off its hands as to having any power to do anything on Jersey. If on the other hand it asserts the authority of the Bishop through Jersey Canon Law it de facto accepts that this is the legal and judicial framework through which any charges that are recommended by the Steel inquiry should be handled. What to do?
If someone stops you claiming to be a policeman you have the right to ask for his badge of authority. When he shows you this he will demonstrate not just that he has the authority to stop you but also where that authority derives it basis from. My suggestion for the islanders of Jersey is this – the next time anyone connected with the Diocese of Winchester asks you to do something for the Bishop (say, co-operate with the Steel inquiry), ask them where the Bishop’s authority in this matter derives from. The answer to the question will settle not just why you should co-operate (you should) but also what powers the Bishop can use to act against people as a consequence of that co-operation (or indeed not co-operating).
The conflict in Jersey has never been about safeguarding. Rather, it has always been about who has the authority to sort out safeguarding and where that authority derives itself from. As long as the Diocese (or the Dean of Jersey for that matter) refuses to answer this question it is storing up for itself a legal nightmare when the Bishop finally tries to do something about the mess that is the Bob Key affair.
Quite simply, brilliant.
It seems to me entirely reasonable that D of W should fail to answer this question since that is exactly the question that Dame Heather may wish to raise (and answer) in her report. It seems that “sub judice” would be the appropriate response if one is given at all
Given that the terms of reference have already been published, I can’t see how it could be a sub judice matter to clarify the jurisdiction under which Dame Steel’s authority on behalf of the bishop of Winchester is to be exercised.
I’m really trying to see how the clarification of previously published terms of reference could now be used to influence the outcome of the proceedings. Can you explain?
But, as Peter’s article so succinctly points out the terms of reference appear clear, but deep down they aren’t, I am suggesting that the unclear part may be clarified by Dame Steel, but to try to do so before she reports is to preempt something she might wish to clarify
Seems very clear to me. He has passed on all his authority in this matter to Dame Heather, (he could hardly pass on more authority and there is no point passing on less) but exactly by what route he has that authority seem to be very much the issue of the enquiry and to further detail would be to prejudge the outcome of that enquiry.
The very fact that the terms of reference have already appeared demonstrates that the matter of Dame Steel’s episcopal authorisation is not a matter awaiting a judicial decision. If it was thought to prejudice the outcome, they would not have been published.
I would defy anyone, including you, to point to any other judicial or quasi-judicial proceeding that has withheld clarity on the scope of its jurisdiction as a sub judice matter. In fact, clarifying the jurisdiction under which an enquiry proceeds establishes the terms of reference: the very terms which were published and not deemed to prejudice the outcome of an enquiry.
The truth is that the Church is not always bound by strict codified legal procedure and can dispense with such matters until it sees fit to deal with them. Chichester was a fine example of that.
If this were “exactly the question Dame Heather may wish to raise” then why not say so?
HarryJM does help is to focus on just what is in question here.
For those who have considered this process to date somewhat off colour, verging on a cock-up, what has happened since, including the failure to publish the terms of reference and now the content of those terms themselves, does little to inspire confidence.
There is no dispute as to Canon Law here.
What happens on Jersey is subject to the Canon Law lawfully enacted there, and what happens on the mainland is subject to English Canon Law.
I cannot see any argument that would inspire the learned judge to see it differently.
That others have acted as if Jersey Canon Law does not exist or is subordinate to the law of the CofE might indeed form part of Dame Heather Steel’s conclusions, I am not surprised to see that this does not figure in the Terms.
It is foolish that this PR company fails to answer this sensible question once again stirring up questions about the competence of the diocese and, I would say, their own ability to handle the matter appropriately.
Which still leaves unanswered the question of whether the B of W is ultimately responsible for the proper implementation of safeguarding procedures in his diocese or only in part of his diocese. And if only in part, who is responsible in the remainder (Jersey and Guernsey). In England the line of authority seems to go up through the B of W to the ABC but in Jersey?
That presumably is the question only Dame Steel can answer and any attempt by Luther Pendragon or B of W to pre-empt an answer would be inappropriate.