Tuesday, 25 October 2011

Transparency, good governance and the Church: clearing up some key concepts

Over at Eureka Street Fr Andrew Hamilton SJ has yet another piece defending 'Bishop Bill' Morris and, predictably trying to keep alive the debate on his dismissal. 

And he uses it as a platform for a broader attack on Church governance.  I have some sympathy with Fr Hamilton's more general concerns.  Unfortunately, he has, in my view, chosen the wrong case on which to base this attack, confusing some key concepts.

Keeping the debate alive: how is that a good thing?

Fr Hamilton's article does represent a step forward from the dissenting mob in that it at least accepts the authority of the Pope to act in such a matter.  And no doubt Eureka Street's readers need to talk the bishops' response through for themselves in order to reach some closure on the subject.

But Fr Hamilton then proceeds to undercut any sign of support for the bishops (or the Pope) by arguing that it was a case of poor decision-making process because it was all "informal".  And it launches a more general attack on the Church for its failure to adopt Western democratic standards of 'transparency, natural justice and due process'.

Informal vs formal decisions

And here is the problem.  Fr Hamilton seems to equate judicial processes with good processes:

"The Bishops' description of the actions of the Holy as 'fraternal and pastoral, rather than juridic in character' points the questions raised about governance even more sharply. In Australia, at least, we have come to recognise how decisions reached in informal processes can harm and leave without recourse the people affected by them."

Really?  Firstly the fact that this process was not juridic doesn't mean it was informal.  And more fundamentally, I don't think Australia has come to recognise that informal processes are necessarily bad at all!

First, a process can be formal without being 'juridic' in nature.  And it is quite clear that the process relating to Bishop Morris was very formal indeed: there are documented letters from both sides; there was a call for the bishop to go to Rome to explain himself; there were documented discussions with various Vatican Congregations; there was an investigator appointed; and there were discussions between Bishop Morris and the Pope. 

Contrast all that with the apparent almost complete lack of a paper trail in the discussions and key steps in the processes between Archbishop Hepworth, Monsignor Cappo and Archbishop Wilson in Adelaide, and resulting disagreements on key process issues and outcomes - now that is what I would describe as an 'informal' process!

Secondly, it is not the case that processes need to be judicial in character in order to constitute good process.  The reality is that most decisions in Australia are not the subject of juridic processes.  Take for example the highest decisions in the land, Cabinet decisions.  There are, at least in theory, a lot of requirements built into the standard Cabinet decision-making processes, aimed at ensuring good decisions: documentation requirements (Cabinet Submission and written record of decision); information that has to be included in the documentation; timing and consultation requirements.  It is not, in the majority of cases (save under ex-PM Rudd!) an 'informal process'.  But neither it is 'juridic'.  And nor is every - or indeed much - detail of the process involved made available to all and sundry.  Indeed, as assorted politicians have made clear in response to a recent leak, going public can positively undermine good decision-making processes by suppressing the necessary behind the scenes free and frank debate.

Thirdly, it is not necessarily the case that informal decisions are necessarily bad ones.  Take the example of Cabinet decisions - sometimes things happen fast, and a decision has to be made without all the formal processes being observed.  But I'm sure we can all imagine instances where failure to make a decision quickly would have far more dire consequences than waiting for all the boxes to be ticked.  And then there are the decisions which are just extremely clearcut, and going through an elaborate process is just overkill.

Fourthly, I think Fr Hamilton is quite wrong to imply that legal processes represent a benchmark for good process.  In reality, as anyone who has ever had anything to do with the courts will know, legal processes are often deeply archaic, more aimed at increasing the workload and protecting the jobs and remuneration of of lawyers by locking out any competition than obtaining good outcomes; and stress form over substance.

Finally, Fr Hamilton seems aggrieved that Bishop Morris has no means of appeal to someone other than the Pope, on the grounds that the Pope's decision adversely affects him.

And here he is picking up an argument from the bishop himself seeking to import a particularly American version of the separation of powers into the Church.  Note that I don't say Westminster system as we've inherited it, since the House of Lords remained the highest court in England; there is no absolute separation of powers in that tradition.   Nor is there in the Australian system, since despite the ever-increasing tendency of the courts to extend their jurisdiction, there remains the concept of 'non-judiciable' decisions, decisions that cannot be challenged in a court (I suspect the dismissal of a Governor-General by the Queen would probably fall into that category, and if so, provides not a bad analogy for the Morris Case).

So why should we consider the modern American system the appropriate model for the Church to adopt?  Particularly when God actually gave the Church a different one, entrusting the keys to Peter!

The reality is the Church is not a private corporation, not a secular government, and in the end, the relationship between the Pope and a bishop is not an employer-employee one. 

The Pope's job, in the end, is not to worry about secular concerns over the "reputation" of a bishop (though the Vatican rightly bends over backwards to protect them as far as possible), but to protect souls. 

In reality, the Pope was acting on behalf of the laity, the flock of Toowoomba (whether they all appreciate it or not!) to ensure that all concerned remain in communion with the Church, to protect their souls. 

It is, in my view, just a manifestation of clericalism to think that the reputation of a bishop trumps concern over his soul and the souls of those entrusted to him.

Improving Church governance

There is, it is true, an objective reality that Church governance in the Vatican, Australia and elsewhere is often of a poor standard. 

Indeed, Bishop Morris' long disregard of Church law around General Absolutions, and the more recent attempt of Bishop Wright to disregard Summorum Pontificum are cases in point. 

The objective reality is that many bishops seem to be able to get away with disregarding Church law altogether for long periods.  And this is where Fr Hamilton's analogy to the case of asylum seekers properly belongs: where there are laws, they need to be enforced and be seen to be enforced, not just ignored by decision-makers at will.   For this very reason, Bishop Morris' dismissal is actually a good step forward for improved governance in the Church.

Actual enforcement of laws aside, timeliness of action is another key challenge for the Church at all levels that is certainly raised by the Morris case.  The situation of many priests accused of abuse is another case in point - timely decision-making on these issues is important for both accused and accuser, yet often seems to be absent (consider the Hepworth case, started in 2007!).

Thirdly, all the evidence is that many, even most, bishops regularly do make arbitrary decisions without much or even any real consultation, process, or even reporting to the laity on the decisions they make.  This needs to change.  Bishops, in the end, are there to govern us.  But good decisions do come from good processes, including hearing out those affected even if the ultimate decision is not one they agree with.

Far too often good processes are indeed lacking in the Church.

There is a need for real reform. 

But the Morris case is not ammunition for it; quite the contrary.


Anonymous said...

Actually, the last British government created a separate supreme court, and the House of Lords no longer has any judicial function. In any case, over the course of the nineteenth and twentieth centuries it became customary only for special Law Lords to actually take part in the decisions, meaning that even if there wasn't an official separation of powers, the notion was at least recognised in practice.

This doesn't affect your broader argument, of course, and is purely for your information.

Kate said...

Yes, I was aware of the recent change, though that doesn't make it part of what we understnad as the Westminster system. And of course it is still possible to appeal to the 'Queen in Council', in practice the Privy Council, from a number of Commonwealth countries. But I've amended it slightly to make that clearer.

Robert said...

"[I]t is still possible", Kate correctly writes, "to appeal to the 'Queen in Council', in practice the Privy Council, from a number of Commonwealth countries." Not from Australia, though, since (I believe) 1986.

A Canberra Observer said...

suppress the Jesuits. Now.

Luke said...

Kate, you have written this so well I doubt anyone could mount a serious rebuttal of your arguments. You possess a wonderful clarity and razor sharp focus on the issues being discussed that very few commentators have, including the Jesuits at Eureka Street and Fr Brennan. May God bless you for the work you do for the glory of Jesus Christ and his church.

Kate said...

Thanks for your kind words Luke, though I do thing there is a legitimate argument to be had around these issues.

While I think the argument about independent appeals and judicial processes being necessary is wrong, I am in two minds about the secrecy surrounding Bisho Chaput's report. It probably isn't something that should be made public, but if it featured in the decision-making process (and it is not clear that it did), maybe it would have been preferable to show it to Bishop Morris (but not make it public) and give him a chance to respond. That said, given it seems to have been essentially about giving him a chance to put his case after his refusal to go to Rome to do so, maybe that is bending backwards too far!

Luke said...

The trouble with Morris is that you show him black and he sees white, or to put it another way, he refuses to see, or cannot see what is immediately obvious to every one else. He suffers from a complete and absolute lack of humility and corresponding excessive pride in himself and just cannot admit he is wrong and has done the wrong thing. There is no way he would have accepted the findings in Chaput's report, like everything else he has not accepted, so it wouldn't have made the slightest bit of difference to him. Just look at his response to the Aust bishops. The following is the tally in Morris's mind and it doesn't bother him in the slightest:

Morris - right
Pope Benedict - wrong
Cardinal Ouellet - wrong
Cardinal Arinze - wrong
Cardinal Levada - wrong
Apostolic Nuncio - wrong
Archbishop Chaput - wrong
Cardinal Pell and all the bishops of Australia - wrong

All you can do is pray for him, but don't be duped in to believing that he is somehow on a search for the truth. He doesn't believe the truth and all that knowing the truth entails.