A year ago at General Synod the Church trumpeted an Ombuds scheme in response to survivors’ request for an effective complaints procedure. I sat with others in the public gallery when this announcement was greeted with applause from Synod members. But following that Synod, the NST (National Safeguarding Team) have used the term “persistent and vexatious” to describe any survivors they wish to exclude from this scheme. Ironically, they also expected any survivors would need to be ‘persistent’ as the ombuds they envisaged was to be port of last call and only accessible once every other hoop of possible complaint had been jumped through. Talk about creating vexation!
Think about this for a minute. Without the vexed and persistent pursuit of truth by Phil Johnson across decades – Chichester would not have come to light. Without his persistence it’s possible there would have been no IICSA. Without the vexed and frustrated persistence of many survivors so many of the Church’s failures and cover-ups might never have emerged. Without the persistence of a handful of Smyth survivors, the enormity of that story would never have come to daylight and the dozens (hundreds?) who hid it away would be hiding it still. And without the ongoing persistence of survivors there would be little discernible change in the Church’s response to victims. Persistence has been necessary and is required today and into tomorrow. Without it, the senior layer of the Church of England will easily revert to type – as expressed by the closing statements of survivors’ representatives at the Inquiry. Persistence is needed in the face of continuing inertia and dishonesty.
That this legalistic phrase is used still by the NST and those who manage them suggests the extent to which the structure is led by the interests of the legal team in Church House. It also displays an undercurrent of malevolence towards survivors and shows how unsuited the NST is to any pastoral understanding of this crisis as a whole. It is simply not fit for purpose as currently constituted. It seems clear to many of us that for the NST to stand any chance of salvage, the thing needs to be prised away from control by a shadowy éminence grise, the Secretary General of Synod, and away from the mindset of Church House. Re-abusive harm to survivors coupled with reputational damage to the Church will continue while the NST is allowed to run as an unchecked and unaccountable demesne. Too many survivors have experienced dishonesty from this all-powerful empire. One referred to its culture in terms of ‘enduring cruelty’. I suspect that anyone coming into that culture, however independent, is likely to be assimilated into its self-protecting hive. It needs root and branch surgery.
The lead Bishop and others have lacked the courage to tell Synod the reason why the ombuds has been quietly shelved. A church unable to take ownership of things that need to be acknowledged transparently, especially when a mirage has been presented to Synod, is one that needs to conquer its own moral cowardice. The desire to hide ugly things in a drawer lest they emerge is a sign of a fearful culture still in those running this Church or with responsibility for its various component parts. A Church is not a secular organisation and should be holding itself to a higher standard.
Likewise, the mendacity of EIO (Ecclesiastical Insurance Office) which was finally laid bare in a robust and forensic hearing in the final Anglican hearing at IICSA – was mendacity maintained with the tacit support of William Nye and senior NST management. Both Ian Elliott and myself tried many times to get the NST to address the repeated public falsehoods made by the insurer. They refused. Ian Elliott tried for over a year before he finally gave up. He wrote to the Lead Bishop after his requests were ignored by Church House but received no acknowledgement. I met with the Lead Bishop and Bishop Mullally 18 months ago in a failed attempt to get them to address this too. Despite thorough vindication at the Inquiry there has been no whisper of apology or explanation from anyone, including the Bishop mandated to champion the Elliott Review who seemed content to watch it being devalued by the lies of an insurer. When Counsel to the Inquiry asked three times in a row, “Was your answer sufficiently full and frank?” with increasing emphasis on each word – it was clear to anyone watching the hearing that the weaselry of Ecclesiastical had been fully laid bare in front of a government inquiry. Further evidence has since gone to the Inquiry from another survivor demonstrating further the extent of their slipperyness under oath to the Inquiry. Any differentiation they attempted to make at IICSA between ‘contact’ and ‘pastoral support’ has been found to be meaningless in their own documentation! 1 2 Ecclesiastical has a considerable task to recover its ethical heart. They know it. And so do their charitable owner AllChurches Trust, who astonishingly in late July tweeted the word ‘Shameful’ when it was posted by Janet Fife in reference to Ecclesiastical’s unethical litigation strategies!
It’s also clear that the NSSG (National Safeguarding Steering Group) needs to find the moral integrity to address its own dysfunctional structure. It is not appropriate that two bishops who have walked away from disclosures in denial or “no recollection” and who have failed to address this in any meaningful way other than continued denial – sit on any national panel which makes decisions about the response to survivors. It is unethical. And wouldn’t happen in a county council. Several of us have tried repeatedly to address this. It has been blanked.
As I said in the previous essay, a church which cleaves to the disposition of ‘say nothing unless asked’ or ‘blank any question we don’t want to address’ remains an unhealthy culture. This pattern has led to the ongoing existential crisis of the bishops and senior management of the Church. The time for keeping secrets, whether in a Lambeth Palace eliterie or the corridors of a corrupted Church House, should be over. The Church should no longer create any further cognitive dissonance for its employees by expecting them to play along with senior level dishonesty. Bishops should look at the collective mendacity and cowardice in their senior layer, own it, and deal with it properly. And repent.
1https://www.postonline.co.uk/claims/4276536/revealed-leaked-emails-show-ecclesiastical-staff-using-callous-language-over-child-abuse-claims
2https://www.churchtimes.co.uk/articles/2019/26-july/news/uk/ecclesiastical-planned-to-persuade-bishop-to-take-a-less-active-role-in-claimant-s-pastoral-care
For ‘persistent and vexatious’ read ‘effective’. Thos badges could catch on. Or perhaps T shirts saying ‘Survivor – Persistent and Vexatious’? ‘Persistent, vexatious – and proud!’ There’s a lot we could do with this slogan.
Incidentally, to clarify ‘AllChurches Trust, who astonishingly in late July tweeted the word ‘Shameful’ when it was posted by Janet Fife in reference to Ecclesiastical’s unethical litigation strategies!’. I tweeted ‘Shameful’ in response to a post about EIO, and my comment was then retweeted by AllChurches.
Implacable indifference. That is what I have always been faced with. And indifference is the opposite of love.
‘Persistent and vexatious’ is used in the description of how the NST handles complaints against their staff. Presumably the ombudsman would not be part of NST, as they are by definition independent and impartial so how can survivors be penalised in this way, surley the ombudsman would make the decision if the complaint is legitimate? Are you saying that the NST decide which complaints can go to the ombudsman and which cannot? That would be maladministrtion which is the reason a lot of people seek the services of an ombudsman!
Based on the structure you describe within the NST, which I largely agree with, where does that leave PCR2? The loopholes, problems and level of re-abuse in the documents outlining PCR2 are massive yet the church continues to throw money at it. Diocesan core groups responding to its implementation have to have a survivor on the panel but the initial documents have clearly been nowhere near survivors and that will always create a tension because it does not allow for survivors to be equal partners.
An interesting comparison of language. I would be surprised if the term ‘persistent and vexatious’ had been coined by church lawyer(s). They would know that in the civilian/ lay world, the courts can strike out a claim on the grounds that it is ‘frivolous and vexatious’. Those two descriptions are complementary. ‘Persistent and vexatious’ aren’t necessarily complementary. A persistent complaint may well turn out to be justified – Gilo quotes examples – in which case it cannot be vexatious.
Rowland, the wording is used in this document regarding complaint handling against NCI staff with an explanation for it in the appendix.
https://www.churchofengland.org/sites/default/files/2018-11/NCI%20Complaints%20Process-Safeguarding-final.pdf
As you say it is unlikely this document has been seen by a lawyer. However if you were to email the NST and politely point out the problem with the wording I think they would change it. Sometimes I think they simply don’t have the necessary skill set to word policies properly but if approached with a reasonable argument they can sometimes be open to change. I will try and raise this as well within the contacts I have in order to support Gilo’s observation but at this time cannot see it in relation to the ombudsman.
Here is the expanded description of ‘persistent and/or vexatious’ from the link Trish gave above. I think NCI is ‘National Church Institutions’ – the alphabet soup is rather opaque.
This Procedure was agreed at the meeting of the National Safeguarding Steering Group on 24th November 2017.
Appendix 1 Persistent and Vexatious Complaints
1. Definition of Unreasonably Persistent and Vexatious Complainants
The descriptions ‘unreasonably persistent’ and ‘vexatious’ may apply separately or jointly to a particular complainant.
There is a difference between ‘unreasonably persistent’ and ‘vexatious’ complainants.
A vexatious person in this context is someone who is not seeking to resolve a dispute between themselves and the NCI but is seeking to cause unnecessary aggravation or annoyance to the NCI.
Unreasonably persistent or vexatious complainants may have justified complaints or grievances but are pursuing them in inappropriate ways. Alternatively, they may be intent on pursuing complaints which appear to have no substance or which have already been investigated and settled. Demands on staff time need to be assessed appropriately – on occasion, a little more time up front to understand the issue may actually lead to less time being spent on the issue in total.
2. Actions and Behaviours
Below are some of the actions and behaviours of unreasonably persistent and vexatious complainants which the NCI may experience. One or more of these would raise concerns that the complainant is becoming unreasonably persistent or vexatious. This list is not exhaustive:
• Refusing to specify the grounds of a complaint, despite offers of assistance with this from staff;
• Refusing to co-operate with the complaints investigation process while still wishing their complaint to be resolved. This could involve refusing to specify an outcome, not responding in a timely manner to requests, refusing to meet etc;
• An insistence on only dealing with senior staff on all occasions irrespective of the issue and the level of delegation in the NCI to deal with such matters;
• Refusing to accept that issues are not within the remit of a complaints procedure despite having been provided with information about the procedure’s scope;
• Refusing to accept that issues are not within the power of the NCI to investigate,
change or influence (examples could be something that is the responsibility of
another Church body or external organisation);
• Making what appear to be groundless complaints about the staff dealing with the
complaints, and seeking to have them replaced;
• Changing the basis of a complaint as the investigation proceeds and/or denying
statements he or she made at an earlier stage;
• Introducing trivial or irrelevant new information which the complainant expects to be
taken into account and commented on, or raising large numbers of detailed but
unimportant questions and insisting they are all fully answered;
• Electronically recording meetings and…
Oops! Bear trap! More please.
Sorry, don’t know what happened there.
‘• Electronically recording meetings and conversations without the prior knowledge and
consent of the other persons involved;
• Persistently approaching the NCI through different routes about the same issue;
9
A Safeguarding Complaints Handling Procedure for NCI staff
• Adopting a ‘scattergun’ approach; pursuing a complaint(s) with the NCI and at the same time with other departments, other senior officers, other church bodies and office holders, Solicitors, Professional Boards, external organisations including the media.
• Making unnecessarily excessive demands on the time and resources of staff whilst a complaint is being looked into, by for example excessive telephoning or sending emails to numerous staff, writing lengthy complex letters every few days and expecting immediate responses;
• Submitting repeat complaints after the complaints process has been completed, essentially about the same issues, with additions/variations which the complainant insists make these ‘new’ complaints which should be put through the full complaints procedure;
• Harassing (please see Appendix 2) and/or verbally abusing or otherwise seeking to intimidate staff dealing with their complaint, in relation to their complaint by using foul or inappropriate language or by the use of offensive and racist language.
• Refusing to accept the decision – repeatedly arguing the point and complaining about the decision.’
Word allowance I think. Thanks for this, very useful. I suppose that the persistent bit could be made to fit someone who quite genuinely isn’t getting fair play. Seriously unpleasant.
Yes, it could. Some the proscriptions are reasonable, but others might be true of anyone with a genuine complaint who persists despite meeting a wall of indifference and/or inefficiency. The phrase ‘persistent and/or vexatious’ is telling.
I come back to my original point. For conduct in this context to be objectionable it must be both persistent AND vexatious. Persistence, on its own, may be wholly justified and, as Janet points out, may be necessary. ‘Unreasonable’ persistence (the term actually used) would, I suggest, be vexatious automatically.
It seems to me that a term such as “persistently vexatious” would be preferable. The ‘and/ or’ format is something totally different and not, surely, what is intended?
That’s what the document says, in the section before Appendix 1. The Church of England is a law unto itself.
Back in the 1970s, my father explained to me about a vexatious litigant in his county court – he was the judge – that it meant someone who was forever bringing unfounded libel suits or stirring up trouble where it wasn’t appropriate, taking up a lot of time and energy for the court process. She had to be barred in the end.
A rather different situation from someone trying to get a complaint taken seriously to my mind.
As a slight aside from the church situation, that’s exactly what I was referring to in my first post. An action in the courts (nowadays a claim) can be struck out if ‘frivolous and vexatious’ by the judge, e.g., in the county court, as you say. A persistently vexatious claimant could be disbarred from bringing any further actions in the county court (or equally the High Court) by being declared a ‘vexatious litigant’. That order had to be made by the High Court and, in practice, it meant that the vexatious litigant could only bring further claims in the courts after obtaining the Court’s permission to do so. That was the situation when I retired and, as far as I know, remains the case today.
A further final word about ‘vexatious litigants’. Getting the de-barring order made wasn’t easy, and my hazy memory is that the application had to be made to the High Court through the Attorney-General. The church position isn’t directly affected by any of this, except to emphasise the contrast which David Pennant points out.
Rowland, you are correct is saying that someone declared by the High Court to be a ‘vexatious litigant’ can be made the subject of a ‘civil proceedings order’ (CPO), pursuant to which he (or she) must obtain the leave/permission of the High Court to bring or continue civil proceedings in any court. In some obvious cases (eg for a car passenger to bring a claim for damages following a road traffic collision in which he/she was injured), clearly leave would be given, but not if the claim was to pursue a campaign that was the reason for making the CPO.
One high-profile cleric who is the subject of a CPO is the Revd Paul Williamson, until recently priest-in-charge of St George’s Church, Hanworth. The CPO, made by the Divisional Court (Rose LJ and Jowitt J) on 16 July 1997, followed Williamson’s persistent attempts to get the courts to declare that women could not lawfully be ordained as priests: Attorney-General v Williamson: https://www.infotextmanuscripts.org/vexatiouslitigant/vex_lit_queens_bench_williamson.html. The court was satisfied that he had “habitually, persistently without any reasonable ground” instituted vexatious civil proceedings or made vexatious applications to the Court.
(Ian Burnett, counsel representing the Attorney-General on the application, is now the Lord Chief Justice – Lord Burnett of Maldon CJ.) A month later Williamson was refused permission by Sedley J to pursue proceedings intended to prevent the Revd Lucy Winkett from being installed as a canon at St Paul’s Cathedral: R v Dean and Chapter of St Paul’s Cathedral, ex parte Williamson [1997] EWHC Admin 784: https://www.bailii.org/ew/cases/EWHC/Admin/1997/784.html
The CPO did not prevent Williamson making a verbal objection to the consecration of the Rt Revd Libby Lane (now Bishop of Derby) during the service at York Minster on 26 January 2015.
A CPO applies to ‘any court’ and later in 2015 the late Mrs Justice Patterson refused Williamson leave to continue an application to the London Consistory Court for an injunction against the London Borough of Hounslow to prevent the council from redeveloping land in their registered ownership on the claimed basis that it was historically part of the churchyard and therefore still subject to the effects of consecration: see Re St George, Hanworth [2016] ECC Lon 1. (The chancellor, Judge Nigel Seed QC, subsequently allowed the application to proceed as made by the PCC. When it failed, the PCC was ordered by the deputy chancellor, Judge David Turner QC, to pay the council’s costs in the sum of £10,734: Re St George, Hanworth (No. 2) [2016] ECC Lon 3.)
The sentence after the online case reference to Attorney-General v Williamson is incomplete. It should read:
‘The court was satisfied that he had “habitually, persistently without any reasonable ground” instituted vexatious civil proceedings or made vexatious applications to the Court.’
David, thank you for this. It emphasises in the legal scenario the very high bars to overcome in declaring someone to be a ‘vexatious litigant’: persuading the Attorney-General that a CPO is justified and a High Court judge to make that order.
Clearly, for the Church the test ought to be ‘persistently vexatious’ – and even then applied with caution. In the interests of fairness, David Pennant’s point, we really do need to divorce ‘persistent’ (on its own) from ‘vexatious’. I wonder at what level this would be decided. It clearly should be someone very senior.