ecclesiasticallaw

Ecclesiastical law

Tag: Tithe Act 1936

The English Parish

Phillimore’s Ecclesiastical Law records an ancient dictum that ‘A parish is the place in which the people belonging to one church dwell’ (2nd edition, 1895, quoted at p.1638).  On this view an ecclesiastical parish has three essential elements, a territory (the place), a community (the people) and place of worship (the church).  However, a place of worship will require an incumbent minister, who will in turn require to be appointed and maintained.  A community will also require some form of governance.

It is therefore argued that a parish has 9 constitutive elements.  This is an attempt to identify and describe them, but not to provide a comprehensive account of the law by which they are regulated.  (That would require an entire book.)

1.  Territory

Blackstone describes a parish as ‘that circuit of ground in which the souls under the care of one parson or vicar do inhabit’ (Commentaries vol 1, p.107).  The English parochial structure remains strongly territorial in character.  This territoriality is, of course, the basis of the Church of England’s proud claim to be a truly national Church, with ‘no inch of territory … no place … beyond the reach of the spiritual ministrations of a priest or place of worship’ (L Paul The Deployment and Payment of the Clergy (1964), p.23).

The area of a modern statutory parish will now usually be indicated on a map or plan annexed to the scheme by which it is constituted (Mission and Pastoral Measure 2011, s.52(2)).  Every new parish must be named by its constituting scheme (s.31(2)).

Parishes are subject to extra-parochial places, which are defined as universities, colleges, schools, hospitals and other public or charitable institutions (Extra-Parochial Places Ministry Measure 1967, s.2(1)).  As their name implies, such places are outwith the parochial structure, even if physically located within the territory of a parish.  However, a person who resides in an extra-parochial place is deemed to reside in the parish which it abuts, and hence to be a parishioner.  Any uncertainty on this point is determined by the bishop’s council of the diocese (Church Representation Rules 1(3)).  Any uncertainty about whether a particular area or place is, or is within, a parish or extra-parochial place is determined by the Church Commissioners after consultation with the bishop (s.105(2)).

Independent mission initiatives may also operate within parishes.  Mission initiatives first received legal recognition under the Dioceses, Pastoral and Mission Measure 2007.  They are now regulated by the 2011 Measure (ss.80-84).  A mission is constituted by order of the bishop.  The objective of the mission should be ‘fostering or developing a form of Christian community, to promote or further the mission of the Church, or any aspect of it’.

If an ecclesiastical parish is understood as a territory, it follows that ‘parishioners’ may include persons who are not members of the Church of England.  Roman Catholics, Methodists and Muslims are obviously not members of the Church of England but they are still all parishioners, because they all live within the territory of a parish.

2.  Community

While English law defines the parish as a territory, Roman Catholic law defines it as a corporation.  According to the Code of Canon Law 1983, a parish is ‘a definite community of the Christian faithful’ (canon 515.1).  Thus, in contrast with English law, persons who are not members of the Church cannot be parishioners.  A commentary suggests that the word ‘parish’ is derived from a Greek word that originally meant ‘a pilgrim people’ (in contrast to the English idea of a settled community), and that ‘however important territorial factors are in parish organisation, what is really constitutive of the parish is its being a community of persons’ (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.416).

Despite its corporate character a Roman Catholic parish ‘as a general rule is to be territorial’ (canon 518).  However, personal parishes may be established if this is ‘useful’ (canon 518).  Thus Eastern rite Catholics within the jurisdiction of a Latin rite bishop may be constituted as a personal parish.  The Anglican Ordinariates comprise personal parishes of former members of the Anglican Communion.

As the churchgoing population has become more mobile, modern English law has extended the definition of a parishioner to include persons who worship regularly in the parish church but who do not live within the parish.  A non-resident lay communicant is entitled to have his name entered on the electoral roll of the parish if he has worshipped regularly in the parish church during the previous 6 months (Church Representation Rules 1(2) and (4)).  He also has the same right as a resident parishioner to marry in the parish church (Marriage Act 1949, s.72(2)).  The Marriage Measure 2008, as amended in 2012, extended the right to marry in the parish church to persons who can show a personal or familial connection with the parish or the church.

3.  Church

If a building is not already a parish church it cannot be legally constituted as such until

(1) the Commissioners approve it as ‘suitable’, and

(2) it is consecrated (Mission and Pastoral Measure 2011, s.41(2)).

‘Suitable’ is not defined further.  Canon law suggests that only a permanent place of worship should be consecrated.  The original Roman Catholic Code of 1917 forbade consecration ‘if it can be reasonably foreseen that a church will be turned to profane uses’.  Churches made of wood or iron were not supposed to be consecrated on account of their impermanent character (canons 1165, now abolished).

A parish has no right to a parish church.  Thus a new parish may be created even if it has no parish church (2011 Measure, s.31(4)).  A scheme may also provide that an existing parish church shall cease to be constituted as such (s.41(1)).  If there is already a church in the area of a newly-created parish, this may, but need not, be designated as the parish church.

However, a parish with no parish church must still have some place of worship.  If a parish has no church the bishop must licence a building, or part of a building, within the parish for public worship (s.43(1)).  Thus the bishop consecrates a permanent place of worship but licences a temporary one.  This rule seems to echo the canon law.

A licensed place of worship may also be designated the parish centre of worship (PCW).  Thus a building which is not a church requires to be both

(1) licensed for public worship by the bishop and

(2) appropriately designated by him

in order to become a PCW.  The designation of a PCW must be under seal (s.43(6)).

Although the bishop is obliged to licence a place of public worship he is not expressly obliged to designate a PCW.  S.43(3) suggests that a bishop may designate a PCW even if there is already a parish church.

4.  Benefice

While upholding the fixed territorial character of parishes, modern ecclesiastical law permits considerable flexibility of parochial ministry.  A single incumbent may have pastoral responsibility for more than one parish.  Contrariwise, a single parish may be under the pastoral care of more than one incumbent.

The former arrangement may be effected in one of two ways:

(1) the single incumbent may hold two or more benefices in plurality (2011 Measure, s.32)

(2) the benefices themselves may be united or merged into a single united benefice (s.31).  A distinction is therefore drawn between a parish and the area of a benefice.  Several parishes may share the same benefice.

A plurality is obviously a looser arrangement than a united benefice.  The bishop may permit the incumbent of a plurality to resign one or some benefices but not all of them (s.32(4)).  Also, on a vacancy in the benefices, the plurality may be terminated at the instance either of the bishop or one of the parochial church councils (s.32(2)).  A united benefice may not be dissolved in such circumstances, unless its constitution provides for this.

The latter pastoral arrangement may also be effected in one of two ways:

(1) In a group ministry, each incumbent is required to assist the other incumbents in the group ‘so as to make the best possible provision for the cure of souls throughout the area of the group’ (s.35(1)).

(2) A team ministry is a more radical departure from traditional parochial ministry.  It is a sharing of the cure of souls by two or more clergy within the area of one benefice (s.34(1)).  A team ministry comprises a team rector and one or more team vicars.  In a traditional parish a rector and vicar never work side by side.  Teams vicars are quasi-incumbents, though their offices are licensed, not beneficed (s.34(4).  A team vicar, or other member of the ‘team’, may be assigned a special cure of souls of part of the area of a benefice or a particular ‘pastoral function’ within the team ministry (s.34(8)).

Group ministry and team ministry are not mutually exclusive.  A group ministry may include a benefice which is constituted as a team ministry (s.35(6)).

If a benefice is vacant for a long time, a licensed priest-in-charge acts in place of the incumbent.

5.  Patronage

A right of presentation to a benefice, or advowson, was originally a right of property, a so-called ‘incorporeal hereditament’ similar to a right of way.  However, as a result of the Patronage (Benefices) Measure 1986, most advowsons have been severed from land (s.32).  Now they are merely the personal right of the patron.  Only rights of presentation attaching to benefices and bishoprics retain a connection to land.  Thus if an incumbent is ex officio the patron of another benefice, the right of patronage continues to be part of the incumbent’s benefice property.

The patronage of a statutory benefice or plurality should be provided in its constitution (2011 Measure, s.46(2)).  If the constitution is silent the right of presentation vests in the diocesan patronage board (s.46(3)).  The patronage of a team rectory and the appointment of a team vicar are regulated by schedule 3 of the 2011 Measure.

A patron’s title is now proved by registration on a diocesan register (1986 Measure, s.1).

The patron’s exercise of a right of presentation (as distinct from his ownership of it) may be suspended under s.88 of the 2011 Measure.  Hence the need for a priest-in-charge.

6.  Endowment

The mediaeval canon law discussed in the preceding post suggests that the parish church and the supporting endowment were originally inseparable, and that together they formed the basis of the ecclesiastical parish.  Blackstone held that the boundaries of a parish were originally determined by the appropriation of tithes to a particular church and incumbent (Commentaries, vol 1, p.109).  From the middle ages until relatively recently, incumbents resembled self-employed farmers, men of property who lived off the rents and profits of their glebe land, and, of course, tithes.

The case of Greenslade v Darby (1868) 37 Law Journal 137 suggests that the churchyard may be a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The rector (who in that case was a lay rector, not an incumbent) therefore has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

Tithes were originally payable in kind (wood, grain, cattle, sheep, poultry etc).  Later, they took the form of a payment of money called the tithe rentcharge or corn rent.  The Tithe Act 1836 commuted almost all tithes into rentcharges.  Tithe rentcharge was finally abolished a century later by the Tithe Act 1936.

The Endowments and Glebe Measure 1976 finally severed the ancient connection between parish church and endowment.  Under s.15 of the Measure, all benefice glebe that had hitherto vested in the incumbent was transferred to the diocesan board of finance (s.15), and so became part of the diocesan glebe instead (s.45(1).  Modern incumbents therefore resemble salaried employees rather than gentleman farmers.  The diocesan board of finance is now responsible for the payment of clergy stipends (Miscellaneous Provisions Measure 2000, s.1(1)).  There is a national minimum stipend fixed by the Archbishops’ Council (Terms of Service Regulations 2009, reg 11(1)).  Pensions are also administered nationally by the Church of England Pensions Board.

7.  Parsonage

Although he is no longer master of glebe and tithe, the incumbent remains the nominal freeholder of the parsonage (the official residence of the benefice) even if his occupation of it now resembles that of a tenant or licensee of the Church.

The Parsonages Measure 1938, extensively amended by more recent Measures, and the Repair of Benefice Buildings Measure 1972 are the two principal statutes regulating parsonages.

Much of the 1972 Measure resembles a kind of statutory lease, stating the respective rights and duties of the Church and the incumbent towards the parsonage.  It regulates the incumbent’s occupation of the parsonage.  The 1938 Measure, by contrast, regulates dealings with parsonages between the Church and outside third parties.  It is principally concerned with the sale of old parsonages and the purchase of new ones.  Thus, while much of the 1972 Measure resembles a lease, the Parsonages Measure resembles a conveyancing contract and protocol.

Although the incumbent is freeholder, the Endowments and Glebe Measure 1976 confers a power of compulsory acquisition of the parsonage from him, if the Church considers that it is no longer necessary for his ‘convenient occupation’ of the incumbent (s.32).

A house that is built or purchased for use as a parsonage must be certified as such by the bishop (Parsonages Measure 1938, s.11).  The constitution of a benefice may, but need not, designate the official residence of the incumbent, or of a team vicar (Measure and Pastoral Measure 2011, s.45(1)).

An incumbent has no a priori right to a parsonage house, just as a parish has no right to a parish church.  However, under the new regime of ‘common tenure’ introduced by the Ecclesiastical Offices (Terms of Service) Measure 2009, other full-time stipendiary clergy and lay ministers are entitled to accommodation ‘for the better performance of [their] duties’ (s.4(1)).  A priest-in-charge of a vacant benefice will usually live in the parsonage (cf. 2011 Measure, s.86(4)).

8.  Churchwardens

The normal rule is two churchwardens to a parish, but the Churchwardens Measure 2001 permits a different number of churchwardens on the basis of local custom or special statutory authority (s.11).  Moreover, if a single parish has more than one parish church, or has a parish church and a PCW, there must be two churchwardens for each church or PCW (s.1).

If there is a team ministry for a parish containing more than one church or place of worship, the constituting scheme may allow for deputy churchwardens for each, and for the functions of churchwardens to be delegated to them (Mission and Pastoral Measure 2011, schedule 4.3(2)(d)).

9.  Parochial Church Council

Every parish must have a parochial church council (‘PCC’).  The constitution of the PCC is provided in the Church Representation Rules.  The PCC must include a certain number of lay members elected at the annual parish meeting by those enrolled on the electoral roll of the parish.

The Church Representation Rules permit parishioners to make certain variations to the structure of parochial administration.  Such variations may also be authorised under the Measure and Pastoral Measure 2011, but on a temporary, experimental basis only.  There are five particular variations:

(1) If a parish has more than one place of worship, the PCC may be specially structured ‘in such manner as to ensure due representation of the congregation of each church or place [of worship]‘ (rule 18).  Thus each congregation will be separately represented on the PCC.

(2) More radically, a separate district church council (‘DCC’) may be constituted for the district of the parish in which a church or place of worship is situated.  A DCC need not be constituted for every district in the parish containing a place of worship, and it is possible to have both a specially structured PCC and one or more DCCs at the same time.

Variations (1) and (2) apply to a parish with more than one place of worship.  The other three variations depend on the benefice rather than the place of worship:

(3) There may be a joint PCC where two or more parishes share a single benefice or where benefices are held in plurality (rule 19).

(4) A team council may be established where two or more parishes are served by the same team ministry (rule 20).

(5) A group council may be established for the parishes served by a group ministry (rule 21).

However, notwithstanding these variations, each individual parish retains its own PCC at all times.

Ecclesiastical Law and Disestablishment

The Welsh Church Act 1914, which provided for the disestablishment of the Church in Wales, was discussed by the House of Lords in the case of Representative Body of the Church in Wales v Tithe Redemption Commission (1944) 1 All England Reports 710, in which they overruled the decision of the Court of Appeal in Tithe Redemption Commissioners v Commissioners of Church Temporalities (1943) 1 All England Reports 605.

Interestingly, the law lords who decided the Tithe Redemption case were headed by the then Lord Chancellor, Viscount Simon, who, as the Liberal Attorney-General Sir John Simon, had successfully promoted the bill which became the Welsh Church Act.

The Tithe Redemption case prompted Lord Denning to formulate his famous thesis on the division of ecclesiastical law into ‘general’ and ‘technical’ law in an article ‘The Meaning of Ecclesiastical Law’ (1944) Law Quarterly Review, vol 60, p.235.  This article has been discussed elsewhere.  Lord Denning defined ‘technical’ ecclesiastical law as ‘the law administered by ecclesiastical courts and persons’ (p.236), though his analysis concentrated rather more on the courts than the persons.

As Lord Denning noted, the Welsh Church Act does not contain any definition of ecclesiastical law.  Nor did the Irish Church Act 1869, which effected the disestablishment of the Church of Ireland and provided the model for the Welsh Church Act.

Despite the lack of a definition, Lord Denning argued that the structure of the Welsh Church Act supported his suggested distinction between technical and general ecclesiastical law.  He noted that the Act makes specific provision for certain matters ‘which would fall within ecclesiastical law in a general sense … such as rights of patronage, vesting of Church property and so forth’ (p.236).  Where specific provision is lacking, any ‘ecclesiastical  law’ referred to in the Act must be restricted to that administered by ecclesiastical courts and persons.

S.3 of the 1914 Act refers to ecclesiastical law in the following terms:

‘ecclesiastical courts and persons … shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1))

‘ecclesiastical law shall include … such law so far as it is embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892 or the Ecclesiastical Dilapidations Acts 1871-2, or any other Act of Parliament’ (s.3(4))

S.38(1) of the Act defines ‘ecclesiastical person’ as ‘the holder of any ecclesiastical office who is in holy orders’.

It must be acknowledged that s.3, considered in isolation, does tend to support Lord Denning’s analysis.  It seems to identify ecclesiastical law with clergy and Church courts.  The Acts of Parliament referred to in s.3(4), which have now all been repealed, regulated the functions of the clergy.

However, it is argued s.3 has to be understood in the context of the Welsh Church Act as a whole.  The long title of the Act makes clear that the purpose of the Act was

[1] ‘to terminate the establishment of the Church in Wales … and

[2] ‘to make provision in respect of the Temporalities thereof and …

[3] ‘other purposes in connection with [1 and 2]‘.

S.1 of the Act provides that ‘the Church in Wales … shall cease to be established by law’.  ‘Established by law’ means ‘constituted by law’.  ‘Temporalities’ refers to property and property rights.

The Welsh Church Act therefore had a twofold purpose

(1) to reconstitute the Church in Wales on a voluntary basis and

(2) to dispose of its property.

The references to ‘ecclesiastical law’ in s.3 of the 1914 Act should therefore be understood in the context of the Church’s establishment.  The ‘establishment’ of the Church is its constitutional structure, its organisation.  The law of the Church regulates its function.  The function of the Church in Wales, as of any Church, is the administration of the Christian religion.  Ecclesiastical law regulates the administration of the Christian religion.

Thus the 1914 Act reconstituted both the Church’s

(1) structure / organisation and

(2) its function

on a voluntary basis.  Henceforward the members of the Church in Wales would decide its organisation and function on the basis of rules agreed between themselves, though subject to the secular law.

Thus the 1914 Act made a distinction between the Church’s religion and its property, not between its ‘general’ and ‘technical’ law.  It is rather absurd to divide the administration of the Christian religion into ‘general’ and ‘technical’ aspects.

It may indeed be difficult, even impossible, to define the exact boundaries of ecclesiastical law.  Where does the administration of religion end and secular governance begin? 

The House of Lords specifically declined to answer this question in the Tithe Redemption case.  ‘It is not … necessary to pronounce finally on these niceties’ (Viscount Simon, p. 713).  ‘I am not clear as to the precise effect of the very general words of s.3′ (Lord Wright, p.717).  ‘I do not desire to dogmatise as to the effect of s.3′ (Lord Porter, p.718).  ‘I do not think it necessary to determine the exact scope of that ‘ecclesiastical law’ … which by s.3 … is to cease to exist as law’ (Lord Simonds, p.720).

The scope of ecclesiastical governance was sharply reduced in the mid-19th century, before the Irish Church Act and the Welsh Church Act were passed.  By 1914 it was almost exclusively liturgical, restricted to activity within the church and churchyard.  However, ecclesiastical governance continued to engage rights of property.  (It still does, of course.)  The function of the 1914 Act was therefore to regulate the future relationship between ecclesiastical governance and property.

As its name implies the Tithe Redemption case was concerned with tithes (or tithe rentcharge, which was derived from tithes).  Tithes were connected to the administration of religion, hence to ecclesiastical governance, because they were used to pay for the maintenance of the Church.  A tithe owner was liable at common law to repair the chancel of the parish church.

But, as Lord Wright noted, tithe or tithe rentcharge is ‘an incorporeal hereditament … a well-known type of real property’ (p.717).  Ownership of tithe rentcharge and the liability to pay it are questions of property law, rather than ecclesiastical law.

The Welsh Church Act provided, at s.8, that tithe rentcharge in ecclesiastical ownership should in effect be secularised.  Ownership was to be transferred from the Church to the Welsh local authorities and to the University of Wales.

However, s.28(1) provided that

‘Nothing in this Act shall affect … the liability of any lay impropriator of any tithe rentcharge to repair any ecclesiastical building [i.e the chancel], but a [local authority] shall not … be liable for the repair of any ecclesiastical building’.

Thus s.28(1) expressly exempted the local authority tithe rentcharge from the liability to repair the chancel.  However, no such exemption was granted to the University, or to any other lay owner (‘impropriator’) of tithe rentcharge.

The Court of Appeal reasoned that chancel repair was a duty imposed by ecclesiastical law, and hence was governed by s.3 of the 1914 Act.  This meant that the duty had ceased to be a legal duty where the tithe rentcharge was in ecclesiastical ownership, because ecclesiastical law had ceased to exist as law after Disestablishment.

The University had inherited tithe rentcharge that was formerly in ecclesiastical ownership, at Disestablishment.  It could not therefore be liable for chancel repair.  The legal duty to repair the chancel could only attach to tithe rentcharge that had been in lay ownership before Disestablishment.

The House of Lords disagreed with this analysis.  It held that the question of chancel repair liability was governed by s.28(1), not by s.3.  The University was a ‘lay impropriator’ within the meaning of s.28(1), and therefore liable for chancel repair.  The exemption granted to local authorities did not extend to the University.  If chancel repair had ceased to be a legal duty after Disestablishment, the exemption in s.28(1) would not have been necessary.

Tithe rentcharge was actually abolished, or ‘extinguished’, by the Tithe Act 1936, passed over 20 years after the Welsh Church Act.  In consequence, the liability of owners of tithe rentcharge for chancel repair was also abolished.  The 1936 Act provided for a system of compensation.  Former lay owners of tithe rentcharge received compensation for the loss of their ‘incorporeal hereditament’.  However, the Church also received compensation, because it had lost a legally enforceable right to the repair of its chancels.

Thus the practical effect of the decision in the Tithe Redemption case was that the Church in Wales, through its Representative Body, received compensation under the Tithe Act 1936, because it had lost the legal right to require the University of Wales to repair some of its chancels.

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