26 July 2012

Creating a corporate culture

Last week’s announcement that Monsignor Philip Egan, Vicar General of Shrewsbury diocese, is to replace Crispian Hollis as bishop of Portsmouth has met with widespread approval. William Oddie, writing in the Catholic Herald, described it as the first appointment to the English hierarchy made on the advice of the new Papal nuncio, Archbishop Antonio Mennini. “It is,” said Oddie, “a cracker.”

The new bishop Egan shan’t have an easy task in Portsmouth, a large diocese of 96 parishes spread across Hampshire, Berkshire, part of Dorset, the Isle of White, and even the Channel Islands. Among the most immediate of his problems shall be a messy and potentially very important legal case which may yet go to the Supreme Court of the United Kingdom.

A 47-year-old lady, referred to as ‘JGE’ in court, claims that she was abused when she was between six and eight years old by the late Father Wilfred Baldwin. JGE was at the time in a children’s home run by the Sisters of Charity in the Hampshire town of Waterlooville. She says that Baldwin, who as the local parish priest was regularly invited to visit the children’s home, raped and otherwise abused her, and that the sisters witnessed this and did nothing, having also disregarded previous claims that Baldwin had abused two boys.

The diocese rejects JGE’s allegations against Baldwin, who died shortly after they were first made in 2006, not least because Baldwin did not become parish priest of Waterlooville until September 1972, several months after JGE had returned to her mother’s care. At the time of the alleged abuse, Baldwin was acting as Portsmouth’s diocesan Vocations Director in Reading, some 40 miles north of Waterlooville.

In March 2011, the Court ordered that before considering the substantive issues of the case, it would be necessary to address the question of whether or not a bishop could be held responsible for the actions of diocesan clergy, just as employers can be deemed vicariously liable for the actions of their employees.

In November 2011, a High Court judge, Mr Justice MacDuff, found that bishops were indeed automatically liable for the actions of priests in the diocese by virtue of the fact that they ordain and appoint them. Accepting that priests were not employees of their bishops, MacDuff nonetheless found that their position as office-holders was nonetheless closer to employment than to self-employment, and that as such bishops could be held vicariously liable for any crimes committed by priests.

Believing this decision deeply flawed and liable to have serious consequences for religious bodies and the voluntary sector in general, the diocese appealed. Insisting that the original decision fundamentally misunderstood the relationship between bishops and priests, it argued that abusive priests acted in ways wholly contrary to everything the Church represents, and that it is unjust to hold a bishop liable for actions of which he would have been unaware and thus unable to prevent.

The diocese has stressed that this should not be seen as an evasion of responsibility; it fully accepts that where a bishop had been in a position to prevent a priest from committing harm but had failed to do so, then the diocese would indeed be legally liable, and should pay compensation.

The Court of Appeal heard the diocese’s appeal in May, and on 12 July upheld the original decision although two of the three judges took issue with MacDuff’s claim that bishops endowed priests with “immense power” and rejected his implication that there was something inherently risky about ordaining somebody to the priesthood. All three judges commented on the difficulty of reaching a decision, and both of those who rejected the appeal nonetheless recognised the force of the diocese’s arguments.

Lord Justice Tomlinson, the only one of the three judges who believed the original decision should have been overturned, found the original decision’s reasoning “contrived and unconvincing” in its attempt to transpose commercial concepts of enterprise and benefit into the context of ecclesiastical relationships. Vicarious liability applies to businesses which exist to make a profit, such that compensation can be demanded from companies when harm is caused by one of their employees, but while priests are expected to act in accord with the aims of their bishops, they can hardly be said to act for their benefit.

“If Father Baldwin can properly be regarded as undertaking his ministry for the benefit of anyone,” Tomlinson found, “I should have thought that it was for the benefit of the souls in his parish.”

Lord Justice Ward, whose judgement made up the greater part of last week’s decision, applied a variety of tests to the question, including considering the Church as an organisation. Citing the Code of Canon Law’s description of a diocese as “a portion of the people of God […] entrusted to a bishop to be nurtured by him, with the close co-operation of the presbyterium,” he translated this into secular language as follows:

“There is an organisation called the Roman Catholic Church with the Pope in the head office, with its ‘regional offices’ with their appointed bishops and with ‘local branches’, the parishes with their appointed priests. This looks like a business and operates like a business.”

This ‘translation’ seems to owe more to popular myth than to any real understanding of the Church, and it is difficult to see how a judgment that recognises that priests are not delegates of their bishops, just as bishops are not delegates of the Pope, can have characterised priests as branch managers and the Pope as a kind of ecclesiastical CEO.

Legal advice
The Church’s sacramental unity is not reflected in its administrative structure, as Ian Elliott, the Protestant head of the Irish Church’s National Board for Child Protection observed in October 2009. Having previously thought of the Church as “one large but single body”, he had learned that even the Church in Ireland should not be understood that way: “Although it is described as a single Church, it is more easily understood as a single communion with close to two hundred different constituent elements.”

Things are scarcely different in England, where the Catholic Church is not recognised as a legal entity in its own right. Even individual dioceses lack legal personality, such that diocesan trusts are necessary for dioceses to own property and manage their financial affairs.

The Court of Appeal has refused the diocese permission to appeal to the Supreme Court, but the diocese is taking legal advice on this matter. By extending the concept of vicarious liability beyond well-established situations of employment, the High Court and Court of Appeal decisions have potentially transformed the relationship between bishops and priests, and threatened the voluntary sector in general, raising serious questions about the extent and nature of institutional liability.

These questions remain to be answered. At the very least, the Church is entitled to clarity.

-- Originally published in The Irish Catholic, 19 July 2012

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