The
Confidentiality Clause –
a rod for our
backs.
What is the
ethical limit of the confidentiality clauses in the Standing Orders?
The Complaints
and Discipline procedure was produced to promote order and discipline in
the Methodist Church. Its rules are supposed to maintain the ethical
stance of the Church as laid out in SO 1100. Those rules, introduced by
Conference, are a key part of the doctrine of the Methodist Church as is
required of the Methodist Act 1976, by which the Methodist Church in
England is established.
This is the
Methodist Way.
A secondary
function of the Complaints and Discipline procedure is to protect the
Methodist Church from outside criticism by persons who neither share our
faith nor know the detail of our beliefs and our ethical stance. Any of
us may, on occasion, behave in ways which are damaging to ourselves and
others and thus undermine the credibility of the Church’s witness.
It is right
therefore that we should have confidentiality in our most sensitive
dealings – particularly if they concern the private lives of members of
the church community. Ministers are often aware of private situations
that the public have no right to know.
This is also the
Methodist way.
A third use of
the confidentiality clause is to cover up the misdemeanours of someone
in the church who acts blatantly in breach of Standing Orders. This may
be for a variety of reasons – perhaps the abuse of power when a person
wishes the achieve a goal and does not care much how that goal is
achieved, or whether it is a just or moral manner in which to act within
the church.
It is easy to
achieve immense power over a large number of people within the Methodist
Church. And to cover it all up it is merely necessary to quote the
Standing Order on confidentiality.
THIS IS NOT THE
METHODIST WAY – though some in power in the church go down this route.
The most
important clause concerning confidentiality is SO 1104 and, in
particular, clause (7):
“The
complainant and the respondent and any person who has brought a
complaint under previous Standing Orders relating to complaints and
discipline or had such a complaint made against him or her must observe
at all times the confidentiality of those proceedings. The provisions
of Standing Order 1157 apply if there is any breach of this obligation”
SO 1157 is a
lengthy clause in the Standing Orders concerning breaches of
confidentiality. It gives extensive notes on what powers are available
to the church should there be a breach of confidence.
There is no
limit to the length of time to which this confidentiality may be extended. Certainly the Church authorities have determined that even when a
dispute is settled by the complaints system, the documents and the
evidence given during the panel of inquiry’s hearings are strictly
confidential – forever.
So, to take an
example, the wife of a certain minister in a particular district is
sexually assaulted by another minister in the district. The minister
appeals to his District Chair about this abuse – and is told that he
should not spread the word of this around because it will affect the
reputation of the Methodist Church - the Chair will deal with it
quietly.
Except that
nothing happens.
Smarting from
this, the minister whose wife has been sexually abused takes out a
grievance against the offending minister, detailing dates and times and
other such details of when the assaults took place.
The Local
Complaints Officer thinks that this is far too “hot” for him to handle,
and, egged on by the District Chair, he says that the complainant must
take this to a national connexional complaints panel if he wishes to
pursue the grievance. It is thought that the national publicity of this
shameful episode will deter the minister from proceeding.
The complainant
minister considers that a connexional Complaints inquiry will surely
vindicate him, so he takes that step, sending his grievance to Methodist
Church House. A panel of inquiry is formed and the leader rings up the
District Chair for background on the two ministers.
The District
Chair is afraid that if this matter gets out of his hands, he will be
blamed for not having done something about it earlier, so he advises the
panel leader that the woman involved is not a particularly stable person
and should not be relied upon.
The connexional
panel think about things and decide that, on balance, it would be better
if they found against the complainant, hinting that the chief witness,
the abused wife, is not entirely reliable as a witness.
The wife is
furious. She has had to go through the details of the sexual abuse -
which was very humiliating for her - in front of three men on the panel.
She wants to go to the newspapers with her story – particularly when she
comes across her abuser in the street one day and he laughs at her.
Her husband
cautions her. He says he will appeal the decision of the Connexional
Complaints Panel. However, he discovers that he cannot appeal the decision,
because it was he who determined that the complaint should go the
Methodist Church House.
He reads the
relevant Standing Order to his wife – SO 1126(2)
“No appeal may
be brought against a decision that a complaint should be dismissed if
the complaint was referred to the connexional Complaints Panel by the
complainant rather than the
local complaints officer.”
The matter is
completely confidential and shall remain so forever.
The wife has a
fit about this – so her husband suggests going to the police. This,
after all, was a sexual assault, a criminal offence.
Out of the blue,
he is offered a promotion by the District Chair, who pushes through his
candidacy for the job of Superintendent in a neighbouring District.
Would the prospect of a nice Manse on the top of a hill not persuade her
to shut up?
Of course any
involvement with the police will naturally jeopardise the promotion, for
such enquiries would become public and would tarnish the image of the
new Superintendent and his wife. Furthermore, any breach of
confidentiality that he might commit in giving evidence to the police
would, naturally, count against him.
You think that
this could not happen? Well, you need to get out more.
The above little
anecdote, the true version of which actually broke up a marriage, was
well within the Standing Orders of the Methodist Church.
HOWEVER – IT WAS
NOT THE METHODIST WAY,
We should never
forget S.O. 1100.
This contains
the over-arching principles of the Methodist Church in the Standing
orders concerning confidentiality.
“SO 1100
Principles.
(1) The need of
the Methodist Church for a complaints and discipline process stems from
the imperfect nature of human beings. The Church is a fallible community
and its members on occasion behave in ways which are damaging to
themselves and others and which undermine the credibility of the
Church’s witness. A complaints and discipline process is one of the
means by which the Church recognises that all human beings are made in
the image of God and are entitled to be treated as such, and by which it
maintains its witness to the new life to which we are called through
Christ.
(2) Through the
complaints and discipline process members of the Methodist Church are
accountable to the Church in matters of faith and behaviour. The Church
seeks to enable healing
and reconciliation to take place through that accountability whenever
possible. The Church also responds to the call through Christ for
justice, openness and honesty, and to the need for each of us to accept
responsibility for our own acts.”
This is not so
much a standing order – but a principle which over-sees all other
standing Orders. It is followed by other such principles which govern
the manner in which all other standing orders are to be used.
For example:
1102 General Matters.
“(1) The
principle of fairness set out in Standing Order 1100(3)(v) above means
that all persons exercising functions in relation to complaints and
discipline must at all times have regard to the further principles that
a respondent
should:
(i) have an
adequate opportunity of responding to the complaint, meeting any charge
and dealing with the evidence;
(ii) be
treated fairly by any complaints team dealing with the complaint; and
(iii) receive
a fair hearing from any church court which is to decide whether any
charge is established.”
Perhaps most
importantly, the over-riding principle in S.O. 1100 (2) reads:
“The Church also
responds to the call through Christ for justice, opennessand honesty”
This opens the
question – is it always right to maintain the rules on confidentiality
as in SO 1104? What if events breach SO 1100(2) – what if something is
going on that is not just, and yet is being kept secret, using the rules
on confidentiality in SO 1104?
If anyone in the
complaints system - members of the complaints panel, the complainant or
the respondent - breaches the call of Christ for justice, is it right
that such transgression should be hidden away from others in the Church?
Church officials
with something to hide may lay great stress on the strength of the
Standing Orders on confidentiality within the complaints systems. When
they do, they display some ignorance of the Standing Orders.
They ignore 1100
(2) at their peril, for it is an over-riding standing order. In
fact. it is a doctrinal principle of the Church, as expressed in
S.O 1100:
“1100
Principles.
(1) The need of the Methodist Church for a complaints and discipline
process stems from the imperfect nature of human beings.”
However, the
need for a complaints system does not supersede the fact that the
Church responds to the call through Christ for justice, openness and
honesty.
Justice openness
and honesty are essential elements in the fundamental principles
of the doctrinal standards of the Methodist Church. This
principle stands above all other Standing Orders. Failure to comply with
it and to uphold it in our dealings is clearly a potential breach of the
Methodist Church Act 1976.
If we deny this,
we must consider the damaging possibilities.
And yet some
very senior members of the Church have denied it.
In legal terms,
if one is engaged in some work, on a confidential basis, which includes
a breach of the law or a breach of anyone’s human rights, the strength
of any confidentiality clause or contract is rendered null and void.
No confidential
agreement can cover up breaking the law of the land, because the law
comes first. That is the nature and consequence of the rule of law.
Similarly, a
person’s human rights under the Human Rights Act will always overcome
some activity perpetrated against that person when it breaches his or
her human rights - even if it is done under a confidentiality clause.
What would be
the position if a company employee signed a confidentiality clause and
then witnessed, within the company files, a large scale financial fraud
or a policy that was seriously misleading the public and even the
government? Would the confidentiality clause that person had signed
protect him or her against criminal prosecution?
It could not.
The law – and indeed public interest, would over-ride the
confidentiality restrictions. The old excuse that “I was only obeying
orders” carries little weight in law.
What if some
crime, such as a burglary, had been committed by a connexional
complaints panel whilst investigating someone - perhaps stealing that
person’s files - could that be ‘covered up’ by using SO 1104?
It cannot, for
that would be going against the principles laid down in SO 1100. We
might hypothesise further – and it is only a matter of degree until we
get down to the level where a breach of standing orders
is the “crime” that cannot be covered up.
Many members of
the Church people have been caught in this “whistle-blower” trap. They
may have been badly treated by the officials in Methodist Church House,
but have felt themselves bound to maintain confidentiality “for the good
of the Church”.
Covering up
transgressions is not good for the Church.
Such is the use
of SO 1104 by the Church that someone might even witness an illegal act
and not report it. Such a person might well be later seen as an
accomplice or an accessory to the crime.
We should refuse
to go along with any attempt to cover up wrongdoing by anyone in the
Methodist Church. If we do so, we become a part of such wrongdoing –
complicit and equally guilty.
Perhaps more
importantly, we would be forgetting the principle laid down in SO 1100
(2) – that we must, each of us, accept responsibility for our own acts.
Let us be clear
about this:
SO 1104 should
not apply when there have been irregularities in the complaints
procedure; it does not cover breaches of Standing Orders committed by a
connexional complaints panel or anyone else involved in the complaints
procedures.
It only applies
when there is no irregularity in the procedure.
However, as it
is used in the Church today, SO 1104 may be used to punish
people. To be unjustly punished is one thing – to then find that you
cannot tell anyone without putting yourself in jeopardy is a second
punishment, but one that is meted out by Methodist Church House with
some relish.
On 11th
June 2019 the Guardian published an article containing details of a
report by the House of Commons Select Committee on Equality. The report
was about confidentiality clauses or non-disclosure agreements. This is
pertinent to the Rev Timms case which we see elsewhere on this website.
The use of SO
1104 - the clause on confidentiality in the Standing Orders - has been
used throughout the Timms affair as a weapon against him.
The connexional
inquiry into his complaints actually began with an accusation
that he had already breached confidentiality concerning an invitation
committee in 2016. The document termed the “false confession” was based
on that accusation - and Professor Kitchin (the leader of the
connexional panel of inquiry) further demanded that Rev Timms confirm
that he had breached confidentiality. Rev Timms’ suspension in 2017 was
largely based on an allegation that he had breached confidentiality in
launching a campaign against the procedure adopted by the connexional
complains inquiry team.
Rev Timms has
consistently maintained that he has not breached confidentiality at any
time. One part of his argument on this is the general principle, as
outlined in this article, that such
confidentiality clauses cannot be used to cover up a breach of
regulations, rules, law – or in this case the standing orders of the
Methodist Church.
This general view
would appear to be supported by the House of Commons Select Committee.
The following
extracts from the complete report are of particular interest.
“It is hard to
understand on what basis it could ever be deemed to be in the public
interest for employers to use legal agreements, often drawn up by
professionally qualified lawyers, HR and trade union professionals, to
cover up allegations of unlawful and sometimes criminal behaviour
committed in the employer’s organization”.
"It is clearly
in the public interest to ensure that allegations of law-breaking are
investigated wherever they occur and are not covered up by legally
sanctioned secrecy”.
“We are
particularly concerned that some employers are using NDAs to avoid
investigating unlawful discrimination and harassment complaints and
holding perpetrators to account”.
“It is very
worrying that some employers appear to have a culture of tolerating
unlawful discrimination and harassment and covering it up with NDAs when
individual complaints threaten to bring it into the open”.
“NDAs should
not be used to silence victims of discrimination and harassment, and
employers and their legal advisers should not be complicit in using NDAs
to cover up allegations of unlawful behaviour”.
“We are
concerned that NDAs are being used unethically and sometimes unlawfully
to deter whistleblowers from being able to speak out in the public
interest”.
Reports such as
this, with such concern about apparent wrongdoing, weighing
confidentiality against the public interest, usually end up as material
for debates in the House of Commons.
Currently it is
illegal in common law to coerce someone into signing a false
confession. Confidentiality clauses, which are used to waive or overcome
such common law rights, are disapprovingly termed by the Commons Select
Committee as “legally sanctioned secrecy”. Their view is that the law
needs to be changed so that such clauses become subject to statute law,
with criminal consequences.
Such changes
would not be confined to employment practices, but to all aspects of
life in the UK, including churches. Standing Order 1104 would no doubt
be seen as one such example of an illegal NDA, if it is used to cover up
any malpractice in the Church. Such malpractice would include harassment
and bullying as well as discrimination and breach of covenant.
The Methodist
Church lawyers will no doubt consider that the report in question refers
to “employers” and that the Supreme Courts decision in President of
the Methodist Conference v Preston 2013 thus precludes the
Methodist Church from such views.
In Preston,
the Supreme Court considered whether , under the Employment Act,
ministers were “employed” The decision was that they were, technically,
not employed.
However, there
was a dissenting opinion on the Court by Lady Hale, She stated, as one
example of the problem that she saw:
“ it would be very odd indeed if a
minister who was not paid her stipend or was threatened with summary
eviction from her manse could not rely upon the terms of her appointment
either to enforce the payment or to resist a possession action.”
She pointed to
several other aspects of the relationship between the Church and its
ministers - which seemed to be very like the relationship that an
employee has with an employer. There were, she thought, “terms of
appointment”.
So, although
ministers may not be “employed”, they nevertheless have legally-binding
“terms of appointment”.
The Commons
committee was actually primarily concerned with equality. One must
wonder whether, under the Church’s “terms of appointment”, SO 1104 and
the manner in which it is used by the Church would be deemed as
“discriminatory” under the Equality Act of 2010. After all, that Act
provides redress for persons that are subjected to:
“conduct (that)
has the purpose or effect of violating the other's dignity, or creating
an intimidating, hostile, degrading, humiliating or offensive
environment”
Many have argued
that Rev Timms, whether right or wrong in his protests, has been
subjected to such treatment. And his case is just one example.
After all, the
Equality and Human Rights Commission would probably consider that
coercion to enforce a non-disclosure clause on confidentiality in order
to cover up a breach of other clauses - in the same document that
contains the NDA - would constitute a violation of a person’s
dignity - with everything that follows such.
This could mean that
the Preston decision of 2013 might be revisited and amended – for
surely the enforcement of an NDA in order to cover up a misdemeanor
indicates a contractual relationship which resembles employment as
determined under the Employment Act rather than
any aspect of the central doctrines of the Methodist
Church.
Surely, to use Lady
Hale’s phrase, “terms of appointment” indicate a contract.
Lady Hale’s
dissention in the Supreme Court summarised:
“In my view, the EAT (Employment
Tribunal) and the Court of Appeal reached the right result in this case
and I would dismiss this appeal.”
In other words, to
quote an old adage in law, she considered that “if it looks like a pig,
smells like a pig and grunts like a pig – it is a pig”.
Lady Hale is
currently the President of the Supreme Court.
The other four
members of the Supreme Court of 2013, who disagreed with her,
summarised:
“the question is whether there were
any arrangements of an employment nature at all. One cannot simply
ignore the Church’s doctrinal reasons for regarding such arrangements as
unnecessary. On the contrary, they provide an essential part of the
factual background. They explain why the situation in which the
respondent found herself was as it was. In finding that there was no
contract, the court is not ignoring the modern approach to these
matters. What it cannot ignore is the fact that, because of the way the
Church organises its own affairs, the basis for the respondent’s rights
and duties is to be found in the constitutional provisions of the Church
and not in any arrangement of the kind that could be said to amount to a
contract.”
In other words,
the Church’s doctrinal reasons for classifying the input of ministers as
not being “employment” lie in the “constitutional provisions of the
Church”, not in any contractual arrangement of employment. The latter is
overtaken by the former.
But what are the
“constitutional provisions” of the Methodist Church? They are surely the
standing orders. These provisions are named “constitutional” because the
Methodist Act of 1976 requires them as a part of the establishment of
the Methodist Church. They are thus ultimately governed or regulated by
Parliament. And that is one of the reasons why the Supreme Court
regarded them as not being subject to the Employment Act. They were
already governed by Parliament.
And when a
minister is ordained, is there not a covenant between the minister and
the Church – and between the Church and the minister – that each will
act in accordance with the standing orders?
The use of SO
1104, the clause on confidentiality in the Standing Orders, as it has
been used throughout the Timms affair as a weapon against him, is
unconstitutional. It is contrary to the doctrinal ethics and
therefore the constitutional provisions of the Methodist Church.
It breaches the
“terms of appointment” in the covenant when he was ordained.
Is this not the
rationale behind the words of the Supreme Court characterized the
position of ministers in the Church as:
“Standing
order 700(2) provides that “by receiving persons into full connexion as
Methodist ministers the Conference enters into a covenant relationship
with them in which they are held accountable by the Church in respect of
their ministry and Christian discipleship, and are accounted for by the
Church in respect of their deployment and the support they require for
their ministry.”
A covenant is an
agreement or promise to do, or provide something, or to refrain from
doing or providing something. It is binding on the party giving the
covenant, the "covenantor" - in this case the Methodist Church.
On the other hand, as stated by the
Supreme Court, ordained ministers “are
held accountable by the Church in respect of their ministry and
Christian discipleship”
Such is essentiality a form of
contract, with obligations on both sides.
Consider for a moment a simple
amendment of the House of
Commons Select Committee report in order to reflect on the position of
the Methodist Church in this:
“It is hard to
understand on what basis it could ever be deemed to be in the public
interest for the Methodist Church to use legal agreements, often drawn
up by professionally qualified lawyers, to cover up allegations of
behaviour contrary to the constitutional provisions of the Church
committed in the organization of the Church”.
and:
“We are
particularly concerned that some members of the executive of the
Methodist Church are using an NDA to avoid investigating unlawful
discrimination and harassment complaints and holding perpetrators to
account”.
Is this not the
position of any reasonable person? Is this not fair, is this not just,
honest and open? Is this not the position that all Methodists accept in
the light of SO 1100.
Is this not the
Methodist Way?
