by Martin Sewell & Richard Scorer

This week, the Lucy Letby case has brutally exposed the lack of regulation and accountability of NHS managers (link to Lucy Letby: NHS managers must be held to account, doctor says – BBC News). Whereas clinicians are subject to professional scrutiny and accountability by independent regulators, NHS managers are not, even when (as in the Letby case) they may have prioritised the reputation of a hospital over patient safety.  This is a feature they share with those in leadership and managerial roles in religious organisations. Both NHS managers and Bishops are amongst the dwindling band of professionals still not subject to independent regulation. This urgently needs to change, and as far as religious bodies are concerned, Professor Jay’s taskforce on independent regulation of safeguarding in the Church of England has an opportunity to set this change in motion.    

A brief recap of where we are. In response to the Independent Inquiry into Child Sexual Abuse (IICSA), the Archbishops Council of the Church of England set up what purported to be an “Independent Safeguarding Board” (ISB) to provide independent oversight of CofE safeguarding. In June its two remaining members, Steve Reeves and Jasvinder Sanghera, were summarily dismissed. Meg Munn, whom the Archbishops Council had tried to impose as chair, also resigned. The ISB project in its existing form thereby effectively collapsed.   

There are some in the CofE safeguarding who seem relatively relaxed about this. Colin Perkins, a leading figure in CofE safeguarding whose work in Chichester one of us commended at IICSA, tweeted in response to the ISB fiasco that “there is some crisis in the centre, yes, but please don’t confuse what happens there with what happens on the ground, where, on the whole, good people quietly get on with it and do a very good job”.  Our experience is that safeguarding responses across the Church of England vary: there are some good people and responses, but some poor ones too, and far too much staff churn.  But events in Soul Survivor, where it seems likely that safeguarding concerns were deliberately brushed under the carpet for years, even as the CofE was telling IICSA that everything had changed, should strike down any complacency. If a cover up can still happen during IICSA, how effective is the CofE’s safeguarding system in reality?

Professor Alexis Jay, the former chair of IICSA, has now been effectively tasked with completing what was designated as “ Phase Two” of the old ISB, by which we mean the conceptualization of “shape” of the replacement iteration of the body to oversee the Safeguarding of the CofE. That work seems to have stopped with the suspension of the first Chair Maggie Atkinson; bluntly, it was the responsibility of the Archbishops’ Council to fill that gap and they signally failed to do so; worse still, the Council sought to frame the independent ISB members, gaming them for that stalling when they were never tasked with that remit.

No member of the Council has taken the honorable path of resignation over this or the lack of any proper planning for survivors in terms of securing data protection, pastoral support, suitable future advocacy recommendation, or delivering on the only completed review to date – that of Peter Spindler in the case of Survivor Mr X.  

At the point at which “Phase Two” stalled, there had been a winnowing of options which were presented to Synod members for feedback. The options were fourfold: a regulator, an Ombudsman an “ACAS” or a hybrid.  Realistically, it should take less than four and a half minutes to see that the idea of the Regulator is “the only show in town”.

The ISB as created by the Secretariat and endorsed by the Archbishops’ Council was a largely secret hybrid in that it was both named and sold as “independent” but it was never intended to function independently. As Steve Reeves told Synod, when the Church says “ independent” it means “semi-detached”. It was closed down as soon as it demonstrated worrying signs of non-compliance. When it attempted to advocate the safeguarding of its only review subject Mr X, by following the recommendations of the Spindler Report, the ISB members were ignored and ultimately sacked.

Add to this toxic history the way in which the original attempts at  examination of the ISB project was cynically shut down by a shabby procedural motion at Synod to move “next business”, and readers will understand that trusting the Church of England again with devising a novel structure would be like trusting teenagers with the whiskey and the car keys the day after they have written off the Volvo.

That issue of trust effectively removes the other two options from the table. Both Ombudsman and ACAS models are predicated upon that one simple and necessary commodity. If you are going to sit down with another party within either structure, there has to be a presumption of mutual respect and good faith, and there has to be an agreed sense of direction of travel. This has no chance of existing in the current circumstances. None of the Church leadership is trusted by the survivor community or their supporters. The responsibility for this tragic state of affairs is so obvious that you have to be a member of Archbishops’ Council or the Secretariat to even consider contesting it.

Like the failed managers of the NHS trusts, the buck stops plainly with the CofE leadership;  although it has constructed a confusing historical structure so that Archbishops Diocesan Bishops. Secretary General, Lead Bishops for Safeguarding, NST Directors and Archbishops Council Members all claim “plausible deniablity”, surely no secular investigator such as Prof Jay need spend too much time excluding these two options.

The CofE has had too many chances to rectify the situation and IICSA was its last chance saloon. Worse, it has consistently shown that it is not even willing to afford its supposedly legislative/ oversight body, The General Synod, time to comprehensively consider and debate these complex matters. A recent 75 page proposal drawn before all these latest crises arose to complicate matters was debated at York. The “debate” was afforded only 10 minutes of time with speech limits of 2 mins. This is what passes for scrutiny in the Church of England.

Of course the House of Bishops had separately considered it so all was well from their point of view, and therein lies another can of worms. As things stand, secular activity such as safeguarding is having to be recast within the mindset of medieval Ecclesiastical Law. The role and authority of the Prince Bishop within his/her Diocese is not to be interfered with. Secular Safeguarding law and culture has no problem with Human Rights Act compliance, there is a strong move towards greater transparency in explaining decision making, Freedom of Information principles and data protection  laws are upheld, there is a culture of collaborative problem solving and most important of all, secular lawyers know what a conflict of interest looks like, they are required to have clear and transparent policies and are held accountable for failure. Bishops are not.

The only credible option left on the table is that of Regulator.  Everyone knows what a regulator is; we trust them in many areas of life especially within the professions. A Regulator is not there to make the rules but to impartially administer and enforce them. Their bona fides and competence is overseen by a Trustee Board and it is important that the Solicitors Regulation Authority, the Bar Standards Board, the General Medical Council and the Nursing & Midwifery Council, all have majority lay Trustees overseeing the development and enforcement of professional standards.

The first question for Prof Jay to ask the CofE is surely this. “What precisely is the reason for the Church of England resisting the establishing of an independent Regulator overseen by competent and professional Trustees in the area of safeguarding?” 

We doubt any resistance will long withstand scrutiny by Parliament which may become necessary given the inadequacies of Synodical processes which are controlled by the forces of conservatism both within House of Bishops and Secretariat alike.

The Regulator would need to liaise with the Church to ensure that its decisions will be directly enforced via the Clergy Discipline measure. A substantial breach of Episcopal or Clergy Standards would need to be actionable by the Regulator as of right and provision duly made within the new Clergy Disciplinary Measure currently being drafted. This will of course offend and upset some sectors of the Church not least those who have been missing in action whilst Bishops have covered up abuse on multiple occasions. There may be a small amount of room for negotiation. It may be that just as the constitutional monarch formally assents to legislation, so a similar nod to Episcopal amour propre could be permitted – but only if there is wholesale surrender of power.

It is not actually much of an ask. No Diocesan Bishop wanted the job of lead Bishop for Safeguarding. None has shown much aptitude or inclination for the task. The newly appointed incumbent has declared a heart for the work but with appropriate modesty acknowledged she has no background. It will take three years to get up to speed by which time she will, on past form, be burnt out and moved on. It is time to stop this absurd merry go round of serial incompetence and appoint a proper Regulator for the CofE with proper skills and resources to do the job properly.

So this is what Jay needs to do: recommend a truly independent Regulator, and recommend that parliament intervenes to create it. And that in respect of safeguarding at least, the CofE becomes subject to the Human Rights Act, freedom of information laws and the Nolan principles– the mechanisms which underpin accountability and transparency in other public bodies, The authors of this article disagree on whether we should have an established church, but as long as we have one, so far as safeguarding is concerned the Church of England surely cannot continue to evade the legal protections which govern the rest of the public sector. The Archbishop of Canterbury, so keen to criticize human rights violations elsewhere, must surely agree that the church ought to be subject to codified human rights standards too?     

Although the above relates directly to the CofE, there is, of course no reason why the costs and activity of such a Regulator should not be spread beyond the CofE. A successful piloting of the scheme could in due course be applied to other Churches and faiths. It is not the task of the Regulator to do other than ensure that the vulnerable are kept safe and that people can gather in worship contexts confident that any issues of concerns will be addressed with professionalism, competence and impartiality. 

The Office of the Faith Safeguarding Regulator is surely something all people of goodwill can surely welcome.

Richard Scorer is Head of Abuse Law and Public Inquiries at Slater & Gordon Lawyers. Martin Sewell is a retired child protection lawyer and General Synod member