Ecclesiastical law

Month: April, 2012

Chancel Repair: Ecclesiastical Duty and Financial Liability

It seems that, in the case of Hauxton Parochial Church Council v Stevens (1929) Probate 240, Mr Stevens, the lay rector, was imprisoned for contempt after neglecting the admonition of the ecclesiastical court to repair the chancel of his parish church (House of Commons Official Report volume 264, column 521).  However, neither the ecclesiastical court nor the secular court could force the lay rector to pay for the repair by the usual civil enforcement procedures (bailiffs etc).

The Chancel Repair Act 1932, which was passed in the wake of the Hauxton case, sought to enforce the lay rector’s liability, where it still existed, by conferring a civil jurisdiction on the secular courts.  However, that jurisdiction was not very clearly expressed in the 1932 Act.

The 1932 Act was first examined in Wickhambrook Parochial Church Council (‘PCC’) v Croxford (1935) 2 King’s Bench 417.  Mrs Croxford was one of several lay rectors of Wickhambrook church.  She received tithe rentcharge of £39.  The chancel required repairs costing £123.

The PCC sued Mrs Croxford under the 1932 Act for the entire cost of the repairs.  The county court dismissed the PCC’s claim on the ground that Mrs Croxford could not be liable to repair the chancel because she had not sufficient tithe income to pay for it.

The PCC appealed and was successful.  The Court of Appeal agreed that Mrs Croxford was liable to pay £123, even though her tithe income was only £39.  (To mitigate hardship, it stipulated a payment by instalments.)

The question of liability turned on the interrelation of the ecclesiastical law governing chancel repair and the 1932 Act.  Under ecclesiastical law the rector had the duty to repair the chancel, physically to do the work.  This is not quite the same as a liability to pay the cost of repair.  The distinction between ecclesiastical duty and financial liability is important.

S.2(3) of the 1932 Act provides that the secular court ‘if it finds that the [rector] would … have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court’ must order him to pay the entire cost of the repair.   The secular court has no discretion to inquire further into the case.  If the lay rector would have been liable to admonition by the ecclesiastical court to do his ecclesiastical duty, he is liable to pay the costs of repair.

The Court of Appeal concluded that Mrs Croxford would have been liable to be admonished to repair.  In reaching this conclusion the Court construed s.2(3) thus:

‘the only question … is whether the [ecclesiastical] court had the power to [admonish].  The word ‘liable’ shows … that the question … is whether the defendant could, consistently with the [ecclesiastical] law, have been admonished and not … whether the defendant would in fact have been admonished in the particular case’ (p.440).

The county court had taken the opposite view.  It apparently accepted that Mrs Croxford could have been admonished by the ecclesiastical court, but found that she would not have been, for two reasons.  First, she did not have sufficient funds to carry out the repairs.  Second, she was not the only lay rector.  The PCC could have pursued the other lay rectors for the cost of repairs, as well as Mrs Croxford, but it chose to proceed against Mrs Croxford alone.

Thus the county court held that ‘an ecclesiastical court, sitting as a court of conscience as well as a court of law, would have declined to [admonish Mrs Croxford]’ (p.424).

It is argued that the county court’s interpretation of s.2(3) was correct.  The Court of Appeal’s ‘rigorist’ interpretation suggests that a lay rector will be liable to pay the cost of repair, even if he would not have been admonished by the ecclesiastical court.  It therefore imposes a greater burden on the lay rector than did the ecclesiastical law.  Instead of merely enforcing a pre-existing duty, it lays down a new and stricter basis of liability.

The ecclesiastical court would have admonished a lay rector who wilfully refused or neglected to perform his duty.  It would surely not have admonished a lay rector who was unable to perform his duty for lack of funds.  Yet the Court of Appeal decided that the lay rector must pay the whole cost of repair, regardless of means to do so.

This raises the question of the extent or measure of the lay rector’s liability to pay for repair.  The 1932 Act translated a physical duty into a financial liability. 

The county court held that Mrs Croxford would not have been admonished by the ecclesiastical court.  It concluded from this that she should not be required to pay anything at all and should be allowed to retain her tithe income when the chancel stood in need or repair.

This decision was clearly unsatisfactory.  However, the Court of Appeal went to the opposite extreme, holding that a lay rector’s liability was not limited to his tithe property but was an unlimited personal liability.

In reaching its conclusion on the extent of liability, the Court of Appeal reviewed the existing ecclesiastical law.  Phillimore had suggested that a lay rector was only liable to be admonished if he had sufficient tithe income to repair the chancel, thus supporting the county court’s decision on Mrs Croxford’s liability.

The Court of Appeal rejected Phillimore’s dictum.  It considered that he did not take account of the position where, as in this case, there were several lay rectors.  ‘The parties sued might escape [liability] because of the insufficiency of their [individual] receipts, although the total receipts … might be sufficient to attract liability’ (p.431).  It rejected the contribution rules suggested by Phillimore to settle liability between lay rectors as ‘very unsatisfactory and illogical’.

Instead the Court of Appeal turned to other authorities.  It found that they contain ‘no trace of any condition limiting the liability of the lay rector’ (p.436).  On this basis it concluded that ‘the liability of a lay rector is personal and is not limited to the amount of his receipts …’ (p.437).

Yet the Court of Appeal misunderstood these authorities.  That they did not expressly limit liability did not justify the conclusion that liability was personal and unlimited.  As discussed, the pre-1932 ecclesiastical courts were concerned to enforce a physical duty, not a financial liability.  Therefore they were not concerned to establish the extent of a liability which they had no jurisdiction to impose.

The Court of Appeal referred to a case in which a bishop had ordered the sequestration of the tithes of a spiritual rectory to secure repair of the chancel (p.435).  The fact that sequestration was limited to the tithes actually supports the view that rectorial liability was limited to the property held by the rector qua rector.

The ecclesiastical court’s power to order sequestration was, of course, limited to spiritual rectors (clergy).  It had no power to order sequestration against a lay rector.  It was for this reason that the Chancel Repair Act 1932 was enacted.  However, even the power over the clergy was limited to property held ex officio.  A clergyman’s private or family property would have been beyond the reach of the ecclesiastical courts.  Thus, even if sequestration could lawfully extend to all  benefice property, glebe as well as tithe, to secure the repair of the chancel, it still did not impose an unlimited personal liability.

The 1932 Act was carelessly drafted, but it should not have been difficult to interpret it so as to achieve a just result in this case.  An ecclesiastical court would not have admonished a lay rector who was willing to perform his duty but lacked the tithe income to do so.  A conscientious lay rector who cannot fully perform his duty will perform it cy pres, by offering such tithe income as he has towards the repair of the chancel.

Thus it is argued that a secular court should conclude that, provided the lay rector has paid over his tithe income to the PCC, or into court, he would not have been liable to be admonished by an ecclesiastical court and so should not be subject to further liability.

However, the decision in Croxford was upheld by the House of Lords in Aston Cantlow PCC v Wallbank (2003) UK House of Lords 37.  Mr and Mrs Wallbank were owners of Glebe Farm (the name is significant).  As such, they were lay rectors of Aston Cantlow church.  The estimated cost of chancel repair was £95,000, vastly more than Mrs Croxford’s liability.

The liability to repair the chancel had, apparently, been attached to Glebe Farm under a private Act of Parliament of 1743.  As a result of this Act the parishioners gave land to the then rector in return for the extinguishment of their liability to pay tithes to him.

This arrangement was to their mutual advantage.  The parishioners ceased to be burdened with tithes.  The lay rector was relieved of the administrative burden of collecting the tithes from the parishioners.

Glebe Farm was part of the land given to the rector in 1743.  The Wallbanks were aware that Glebe Farm carried the liability to repair the chancel when they acquired it.

The House of Lords held the Wallbanks liable for the full cost of the chancel repairs.  They rejected arguments that the liability was unenforceable because it contravened the Wallbanks’ human rights.  Although the House of Lords questioned the soundness of the Croxford decision, they did not overrule it. 

This was doubly unfortunate for the Wallbanks.  Not only did their human rights claim fail, but their counsel’s preoccupation with the human rights claim meant that the question of the common law liability was neglected and the opportunity to overrule Croxford was missed.

There was some uncertainty about the conveyancing history of Glebe Farm.  The very name of the property suggested that it comprised rectorial glebe, not rectorial tithe.  Ecclesiastical law suggests that a rector is required to defray the cost of chancel repair from his tithe, not his glebe.  The glebe is for his personal maintenance.  All previous reported cases on chancel repair concern either tithe property only, or property comprising both glebe and tithe.

If the Wallbanks’ property comprised only glebe it is arguable that it did not carry the liability for chancel repair at all.  If the issue had arisen, the burden of proof would have been on the PCC to establish that the land represented tithe rather than glebe.

The historical facts of the Wallbank case reinforce the view that the Croxford rule of unlimited personal liability is flawed.  The rector in 1743 would never have accepted the tithe commutation land on the understanding that he faced financial ruin if the profits proved insufficient to pay for the repair of the chancel.  It is also unlikely that the parishioners sought to impose unlimited liability on the rector when they made over their land to him.  They merely wished to be free of the obligation to pay tithes.

Terms of Service and the Canons

As its title implies, the Ecclesiastical Offices (Terms of Service) Measure 2009, and the regulations made thereunder, are concerned to regulate the terms of service of the Church’s clerical and lay ministers.  There is a distinction between

(1) terms of service and

(2) the service (i.e the ministry) which is the subject of the terms.

 It is therefore quite possible, in principle, for terms of service regulations to co-exist coherently with the revised canons of the Church of England.  The regulations are concerned with (1) above.  The canons are primarily concerned with (2).

However, the distinction between (1) and (2) is not absolute.  There may be an unavoidable overlap between them.  Residence in the parish, for example, is both a personal need of the incumbent (1) and part of the incumbent’s ministry to the parishioners (2).  (See canon C25).

A more serious difficulty is that there is no reference to the canons either in the 2009 Measure or in the present terms of service regulations.  Terms of service regulations and the canons can indeed co-exist, but there ought to be some co-ordination between them.

The regulations make provision for the ‘continuing ministerial education’ and ‘training’ of officeholders (regulations 19-20).  This rather begs the question, education and training for what?  If the canons are not referred to in the regulations, it is not clear that the education and training enjoined by the regulations will be appropriate to the ministry as defined by the canons.  The Archbishops’ Council may issue ‘guidance’ (regulation 19), but the Council is not required to refer to the canons either.

The same difficulty applies to the performance appraisal or ‘ministerial development review’ of officeholders (regulation 18).  An officeholder must submit to a review of his or her ministry at least every two years, but the standard or criteria against which this ministry is reviewed is not made clear.

The danger is that the canons (at least the common law canons, those not made under the authority of ‘parent’ Measures), while not being formally repealed, will be ignored.  The ministry of officeholders will be arbitrarily determined by those who control the education, review and capability procedures under the 2009 regime.

It may be that the relationship between the common law canons and modern statute law has always been a little confused.  The canons tend to be based on the assumption that all ministry is carried out in the context of traditional parishes, one parish with one incumbent.  They were mostly written before team and group parishes became widespread.  Thus a group ministry or a team ministry is likely to be regulated by its constituting pastoral scheme (which has statutory authority under the pastoral legislation) rather than by the canons.  Cathedral ministry will be likewise be regulated by the Cathedrals Measures and the cathedral constitutions (which also have statutory authority).

Still, it is unsatisfactory that a comprehensive, modernised code of terms of service, which the 2009 regime seeks to provide, should be unaccompanied by any corresponding clarification of the service itself.

The lack of c0-ordination means that canons and regulations may, indeed, regulate the same matters.  The canons are not exclusively concerned with ministry ((1) above).  They regulate tenure and discipline as well, to some extent.  At common law, the visitation was the primary means of oversight, and this is regulated by canon (canon G5).  The visitation canons have not been repealed.  This means that officeholders under the 2009 regime will be subject to two forms of oversight, common law visitation and statutory ‘ministerial development review’.

The canons also regulate the select and training of ordination candidates, albeit in very brief and general terms (canons C6-C7).  The present terms of service regulations make no provision for the training of ordination candidates (or of candidates for lay ministry).  It is arguably anomalous that the regulations should provide for post-ordination training, while being silent as to pre-ordination training.

The 2009 Measure provides that regulations apply to ‘persons holding office under common tenure’ (s.2).  Ordination candidates (i.e persons preparing for ordination) do not, as such, hold office.  However, it is argued that the use of the present tense (‘holding office’) does not preclude regulations for the preparatory training of officeholders.  It is reasonable that ‘holding office’ should be subject to threshold conditions as to competence.  It also makes sense for pre-ordination training and post-ordination training to be governed by a single regime, not two different regimes.

The Origins of Synodical Government

Eric Waldron Kemp, Counsel and Consent (SPCK, London, 1961).

Formal ecclesiastical assemblies emerged clearly in England in the late 12th and early 13th centuries.  This was the era of Becket and Magna Carta, when English clergy started to become ‘very sensitive on the matter of secular encroachments upon ecclesiastical jurisdiction’ (p.67).  In the earlier middle ages, the distinction between secular and ecclesiastical assemblies was not at all clear, despite the famous separation of ecclesiastical and secular jurisdiction by William the Conqueror.

The earliest provincial councils tended to comprise only bishops, abbots and dignitaries such as deans and archdeacons.  Lesser clergy were not invited to them.  However, in 1283 the Archbishop of Canterbury issued a citation for the attendance of ‘two proctors [representatives] for the clergy of each diocese and one for the chapter of each cathedral’ (p.77).

Synodical government, like parliamentary government, was originally necessitated by royal tax demands.  The Pope also requested subsidies in the 13th century, and was informed that there would be ‘rebellion among the lower clergy’ if they were not consulted before a subsidy was agreed (p.70).

In 1294 Edward I summoned the clergy to Westminster to vote taxes.  Initially the lesser clergy sat with the lay commoners, but eventually a separate ecclesiastical assembly was formed for the purpose of voting taxes.  This was the convocation.

The convocation was originally quite distinct and separate from the ancient provincial council.  The council dealt with ecclesiastical business, but the convocation dealt only with taxation.  However, the constitution and proceedings of the convocation began to influence those of the council.

From 1356 onwards, the distinction between a provincial council and a convocation began to disappear.  By the early 15th century ‘the assemblies … seem to be described indifferently as convocation or provincial council … Under Archbishop Chichele (Archbishop from 1414-43) convocatio and concilium provinciale seem to be completely interchangeable terms’ (pp.109-10).

Thus the convocation, which had come into existence for the first time as a result of royal tax demands, eventually remoulded the constitution of the provincial council and gave it its name.  As Kemp says, convocation is ‘the ancient provincial council whose membership has been greatly expanded and formalized by its fusion with [the taxing assembly]’ (p.112).

One important consequence of this fusion was the advisory role of lesser clergy in ecclesiastical matters hardened into a right of veto, which they had originally enjoyed in the matter of taxation.

Synodical government in mediaeval England functioned predominantly in the Southern Province.  The Province of York then had only three dioceses (fewer than Wales, which had four).  The York records are very sparse, but there does not seem ever to have been any separate tax-raising convocation.  The provincial council voted tax subsidies.  As in Canterbury, the terms ‘council’ and ‘convocation’ were used interchangeably to refer to the provincial council.

In 1462, the York Convocation effectively adopted the ecclesiastical law of Canterbury, albeit with the reservation that no constitutions of Canterbury should take effect if they were repugnant or prejudicial to those of York.  Kemp records that, after 1462, ‘York was definitely taking second place to Canterbury.  It became increasingly rare for the Archbishop to attend meetings of Convocation … it was the custom to see first what … Canterbury decided, and then for York to consent or dissent as the case might be’ (p.118).

From 1435 onwards the Convocation was summoned following the issue of a royal writ addressed to the Archbishop and incorporated in the Archbishop’s citation of attendance.  Thus the Submission of the Clergy Act 1533, like the Appointment of Bishops Act 1533, confirmed and codified the existing late mediaeval practice, rather than introduced a new practice.

In 1603 the Canterbury Convocation prepared 141 canons, which were promulged the following year.  The new canons received the assent of the York Convocation a year or so later (p.141).

In 1664, shortly after the Stuart Restoration, the clergy ceased to tax themselves in Convocation and became taxpayers on the same terms as the laity.  However, the Convocations remained active until 1717 when they were effectively suppressed.  They had ceased to be a source of revenue for the Crown.  Bishops may have tired of listening to the complaints and grievances of the lesser clergy, and were better able to influence the governance of the Church from the House of Lords.  More seriously, the newly regal House of Hanover and the Whigs suspected the lesser clergy of Jacobite sympathies.

Yet the Convocations returned in the mid-19th century, to form the nucleus of the present system of synodical government.  This was prompted by the growing secularisation of the state.  In Phillimore’s words:

‘A feeling which had existed for some time that Parliament, in great measure composed of members wholly unconnected with and even necessarily hostile to the Church of England, could not, to say the least, properly claim the sole legislation on matters relating to her doctrine and discipline’ (Ecclesiastical Law, 2nd edition 1895, p.1541).

This feeling led eventually to the formation of the Church Assembly, and to the Church of England (Assembly) Powers Act 1919.

The Rubrics of the Book of Common Prayer

The Act of Uniformity 1662 provided that ‘All and singular ministers in any cathedral, collegiate or parish church or chapel or other place of public worship … shall be bound to say and use … the Book of Common Prayer’ (s.1).

The Book of Common Prayer (‘BCP’) was scheduled to the 1662 Act.  For this reason, the Privy Council held that BCP rubrics were of statutory authority and therefore to be exactly applied in public worship: ‘the Rubric[s] … must be strictly observed: no omission and no addition can be permitted’ (Martin v Mackonochie (1868) 2 Law Reports, Privy Council, 365 at 382-3).

However, the provisions of the Act of Uniformity 1662 to which the BCP was scheduled were repealed by the Worship and Doctrine Measure 1974, s.6(3) and schedule 2.  The 1974 Measure introduced a new regime of public worship.

S.1(1)(b) of the 1974 Measure empowers the General Synod ‘to make provision by Canon … for any matter, except the publication of banns of matrimony, to which any of the rubrics contained in the Book of Common Prayer relate’.  This confirms s.7(2) of the Marriage Act 1949, which provides that ‘Banns of matrimony shall be published … in accordance with the form of words prescribed by the rubric prefaced to the office of matrimony in the Book of Common Prayer …’. 

S.1(2) of the 1974 Measure provides that ‘any such Canon shall have effect notwithstanding anything inconsistent therewith contained in any of the rubrics in the Book of Common Prayer’.

S.1(1)(b) further provides that ‘the powers of the General Synod … shall be so exercised as to ensure that the forms of service contained in the Book of Common Prayer continue to be available for use in the Church of England’.

The rubrics are defined as ‘all directions and instructions contained in the [BCP], and all tables, prefaces, rules, calendars and other contents thereof’ (s.5(2)).

Forms of service are defined as ‘any order, service, prayer, rite or ceremony whatsoever … and the catechism’ (s.5(2)).

Thus the 1974 Measure effectively divides the contents of the BCP into two categories

(1) forms of service and

(2) rubrics (which are everything in the BCP other than forms of service). 

The Measure provides that BCP forms of service should continue to be available for use.  However, the only BCP rubric saved by the Measure is the one concerning banns of marriage.

This means that, with the sole exception of banns of marriage, the 1974 Measure abolished whatever legal authority the rubrics may have had under the 1662 regime.  The Canons promulged under the 1974 Measure have replaced the rubrics.  Therefore the rubrics cannot now have the authority attributed to them by the Privy Council in the 19th century.  All pre-1974 interpretations of the rubrics, whether right or wrong, are irrelevant to the modern law of worship.

Chancellor Rupert Bursell discussed the law of worship in two faculty cases, St John the Evangelist, Chopwell (1995) 3 Weekly Law Reports 606 and St Thomas, Pennywell (1995) Family cases 50.  He also wrote a book on this subject, Liturgy, Order and the Law (Clarendon, Oxford, 1996).

However, although Chancellor Bursell wrote 20 years after the Worship and Doctrine Measure was passed, he seems not to have appreciated that the 1662 regime was actually abolished by that Measure.

Both cases were concerned with the introduction of items associated with ‘ritualism’, including sanctus bells, a thurible or censer and (in the Pennywell case) a ‘sacrament-house’.

The chancellor observed (no doubt correctly) that such items would formerly have been considered illegal.  However, he granted the faculties sought.  His explanation of the change in the law was that the ‘rigorist’ interpretation of the BCP rubrics favoured by the Privy Council in the 19th century ‘has now been swept away’ (Pennywell, p.65), in favour of a more lenient interpretation. 

Both judgments are peppered with references to the ‘rigorist interpretation’ of the BCP and its rubrics.  The Chancellor did not accept that it is actually the authority of the rubrics themselves that has been ‘swept away’, not any particular interpretation of them.

On the contrary, the Chancellor worried that the famous ‘ornaments rubric’ in the BCP ‘may still apply’ to the sacrament-house in Pennywell (p.62).  He even purported to extend the supposed authority of the BCP rubrics by suggesting that they (and not just those concerning banns of marriage) may apply to modern forms of service as well as BCP services.

This latter suggestion was prompted by comparison of different ordination services.  The Chancellor observed that the 1662 rubrics provide for objections to be made to the ordination of a priest or deacon during the ordination service.  Modern ordination services apparently do not make provision for objections.

The Chancellor stated that ‘It is inconceivable that the question whether a valid objection may be made depends upon the choice of ordinal’ (Pennywell, p.67).   His conclusion followed that ‘In these circumstances, the rubric in the BCP, being a rubric concerning Church order, must apply to both rites [i.e the BCP and the modern rite]’ (pp.67-8)  

It may indeed be anomalous and unsatisfactory that one form of ordination service makes provision for objections to a candidate while another does not.  However, the solution is contained in the 1974 Measure.  The General Synod can exercise its powers under that Measure either to promulge a canon requiring that an opportunity for objections must be given at every ordination service, or to decline to approve a new form of ordination service unless it includes provision for objections.

The 1974 Measure provides that the BCP remains one of the sources of the Church of England’s doctrine (s.5(1)).  The rubrics may therefore still be evidence of doctrine.  However, the law of doctrine is a different subject from the law of worship.

The Establishment of the Church of England

The word ‘establishment’ is badly in need of demythologising.  Commentators on ecclesiastical law tend to use the word in the same sense that historians and sociologists use it, as a shorthand reference to the peculiar position of the Church of England in state and nation.  They speak of ‘high establishment’  (the Church’s relationship to Crown and Parliament) and ‘low’ or ‘earthed establishment’ (the Church’s position in local communities).

These shorthand expressions confuse the legal and constitutional issues.  It is therefore important to distinguish the legal meaning of ‘establishment’ from its historical or sociological meaning.

The legal meaning is quite straightforward.  ‘Establishment’ simply means ‘constitution’.  Every organisation, religious or secular, public or private, has an establishment / constitution of some sort.

The peculiarity of the Church of England is not that it is established, but that it is established by law.  Other Churches in England (and Wales) are established only by private agreement between their members.  The Welsh Church Act 1914 provides that the Church in Wales ‘shall cease to be established by law’ (s.1).  The Act could have provided that the Church ‘shall be reconstituted / re-established on a voluntary basis’.  The effect would have been the same.

The Church of England’s relationship to ‘the state’ also needs to be better understood.  ‘The state’ comprises both the ecclesiastical state and the secular state, not the secular state alone.  The Church is the ecclesiastical state.  The Church is established by law, not by the state.  The secular state is itself established by law.

The ecclesiastical state comprises those institutions and offices whose public function is the administration of the Christian religion, whether directly or indirectly.  The religion that it administers is defined by the formularies that are now incorporated into ecclesiastical law by the Worship and Doctrine Measure 1974.

The ecclesiastical state may be described as the ecclesiastical system.  Just as the legal system exists to administer justice, so the ecclesiastical system administers religion. 

This analysis also makes clear that English ecclesiastical law is the counterpart of secular constitutional and administrative law.  Like other English law, it comprises statute law and common law.

Mr Justice Phillimore’s well-known dissertation on ‘establishment’ in the case of Marshall v Graham (1907) 2 King’s Bench 112 is potentially confusing.  His dictum that ‘A Church which is established is not thereby made a department of the state’ (p.126) is true to the extent that the Church is not part of the secular state, and was not created by it.  Nevertheless the Church is part of the state, because its institutions are constituted by law on the same basis as secular state institutions.  The Archbishops’ Council and HM Revenue and Customs obviously have very different functions, but those functions are nonetheless equally prescribed and regulated by law. 

Modern textbooks on constitutional law do nothing to improve understanding of this point.  They seldom, if ever, discuss the Church of England, let alone the Church of Scotland.  This encourages the wrong impression that ‘the state’ comprises the secular state alone.

Although its constitutional position is unique in England, the Church of England is far from being the only Church that is established by law.  England and Scotland have different ecclesiastical systems, just as they have different legal systems.  Other Churches in foreign jurisdictions are constituted by the laws of those jurisdictions. 

The constitutions of England and Scotland make clear that different Churches will have different structures, which may change over time.  However, this does not remove their common characteristic of being constituted by the law of the jurisdiction.

The issue of an ecclesiastical state should be distinguished from the question of religious influence in the secular state.  Thus the questions whether the Monarch should be required to ‘join in communion’ with the Church of England or whether bishops should sit in the House of Lords concern the secular constitution, not the ecclesiastical constitution.

The ‘disestablishment’ question in England therefore raises three discrete constitutional issues, which the sociological shorthand tends to confuse:

(1) should there be a greater separation between the ecclesiastical and secular states (as in Scotland)?

(2) should the ecclesiastical state be dismantled altogether and reconstituted on a voluntary basis (as in Wales)?

(3) should the religious influence on the secular state be removed, or merely adjusted so as to increase non-Anglican influence?

There may be little practical difference between (1) and (2).  It would be possible to do (2) without (3) and vice versa.

Scotland shows that ‘establishment’ is not a uniquely Anglican phenomenon.  Nor is it uniquely Protestant.  The Roman Catholic Church is established or constituted by its own law, which enjoys recognition in public international law.  International law recognises the Catholic Church as an autonomous perfect society under the sovereignty of the Pope.  However, the Catholic Church in a particular jurisdiction may also be constituted by the law of that jurisdiction, perhaps under the terms of a concordat.

The Canons of 1603: Binding the Laity

The royal preface to the canons suggests that their purpose is:

(1) ‘the honour and service of Almighty God’

(2) ‘the good and quiet of the Church’ and

(3) ‘the better government thereof’.

This makes clear that canons are not concerned only with the ministry of Word and Sacrament (purpose (1)), but also with ecclesiastical jurisdiction, the power of governance (purposes (2) and (3)).

Many, if not most, of the canons are concerned with jurisdiction.  The subjects of jurisdiction include:

(1) the regulation of school teaching (canons 77-79)

(2) wills, probate and the administration of estates (canons 92-93, 126)

(3) marriage and divorce (canons 99-108)

(4) public order (canons 109, 111, 121)

The canons also provide much regulation of the practice and procedure of the ecclesiastical courts (eg canons 94, 96-98).

Offences against public order for which the Church was responsible are identified by canon 109.  They include ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life …’.  Several of the behaviours referred to remain capable of constituting criminal offences today.  They are sometimes described as ‘moral’ offences, but the wording of canon 109 makes clear that they had to have a public element in order to come under the criminal jurisdiction of the ecclesiastical courts.  The defendants’ conduct had to ‘offend their brethren’ and be ‘notorious’.

Thus canon 109 was not concerned with what is known in canon law as the ‘internal forum’.  Ecclesiastical jurisdiction over ‘secret and hidden sins’ is regulated by canon 113 instead.

The reduced scope of the canons since the 17th century has two obvious causes:

(1) much ecclesiastical jurisdiction has been abolished or secularised.  Of the jurisdictions mentioned above, the Church retains only a limited jurisdiction over the solemnisation of marriage in church.

(2) the expansion of statute law.  The canons of 1603 were promulged at a time when most ecclesiastical law (and most English law in general) was common law.

In the modern Church of England, the power of governance is mostly regulated by statute (Acts of Parliament and Measures).  The revised canons regulate ministry rather than governance.  References to governance in the revised canons are often limited to identifying or summarising the relevant statutory provisions (cf section G).

However, modern ecclesiastical legislation shows that statutes and canons need not be incompatible.  The most important modern canons, those regulating public worship (canons B1-5), are really secondary legislation made under the authority of a ‘parent’ statute (the Worship and Doctrine Measure 1974).  The ‘ecumenical canons’ (canons B43-44) are also secondary legislation.

If the Church’s ministry of Word and Sacrament can be regulated in this fashion, there seems to be no constitutional reason why ecclesiastical jurisdiction could not also be regulated by canons made under the authority of parent Measures.  This might create a comprehensive, coherent system of ecclesiastical law.

The reluctance to create such a system may be due to simple indifference.  There may also be a feeling that canons should not be used to regulate jurisdiction, even if supported by the authority of primary legislation, because of the supposed rule, associated with Lord Hardwicke’s celebrated judgment in Middleton v Crofts (1736) 26 English Reports 788, that canons cannot ‘bind’ the laity.

King James I seems to have had no doubt that his canons did bind the laity.  His preface declared that the canons should be ‘observed, performed, fulfilled and kept … by all other persons within this realm, as far as lawfully being members of the Church, it may concern them …’, not just the clergy.  In his royal assent he said ‘We … straightway enjoin and command … the [canons] to be diligently observed, executed, and equally kept by all our loving subjects … both within the Province of Canterbury and York …’.

The royal assent required that the canons be publicised to the laity: ‘every minister … shall, in the parish church or chapel where he hath charge, read all the said canons [etc] once every year, upon some Sunday, or Holy Days in the afternoon, before Divine Service … one half may be read one day, and the other another day’.  Also ‘the Book of the said Canons [is] to be provided at the charge of the parish’.

Middleton v Crofts was decided after the civil war and the glorious revolution, when the principle of parliamentary sovereignty was more firmly established than it had been during James I’s reign.  Lord Hardwicke hinted at this when he observed that ‘the law in latter times has been universally taken to be, that the canons of 1603 do not bind the laity for want of a parliamentary confirmation’ (p.790).

He also made clear that there were wide exceptions to this general rule: ‘there are many provisions contained in these canons, which are declaratory of the ancient usage and law of the Church of England, received and allowed here, which, in that respect … will bind the laity’ (p.790).

Lord Hardwicke also referred to the Submission of the Clergy Act 1533, which he noted was ‘The only Act made ex professo upon the subject of the canons … But even this statute is … silent as to the persons over whom the obligation of canons may extend’ (p.793).  The Act did not expressly state that the laity could not be bound by ecclesiastical canons.

The 1533 Act envisaged a project to reform or codify ecclesiastical law (reformatio legum ecclesiasticum), which was never effected.  Lord Hardwicke observed that ‘If the [reform of] the ancient canon law by commissioners’ authority by [the 1533 Act] had been effectually carried into execution … the system of ecclesiastical laws which they had approved, would have derived its binding force … from the legislature’ (p.796).

This account makes clear that the 1533 Act was retrospective in its effect.  It was concerned to regulate only the canons in force in 1533.  The Act was, of course, passed 70 years before the canons of 1603, so could not apply to those canons.

The rule about canons not binding the laity was not even engaged in the Middleton v Crofts case.  Mr and Mrs Middleton complained to Lord Hardwicke when the ecclesiastical court prosecuted and punished them for making a clandestine marriage.  Lord Hardwicke rejected this complaint.  He held that the ecclesiastical court did have jurisdiction to punish them for this offence, because

(1) the ecclesiastical courts had consistently exercised such jurisdiction

(2) the jurisdiction had been supported by the secular court on a previous occasion

(3) it had been implicitly recognised and affirmed by an Act of Parliament and

(4) it was consistent with public policy, which was to deter illegal marriages.

None of these points concerned the canons of 1603.

However, the ecclesiastical court had also prosecuted the Middletons for getting married at an ‘uncanonical’ time of day.  Canon 102 provided that a marriage licence was conditional on the marriage being solemnised between 8 am and 12 noon.

The Middletons, of course, had not troubled to obtain a marriage licence and got married without one.  Lord Hardwicke ruled that they were justly punished for this offence.  They had made their illegal marriage outside the hours of 8 to 12.  However, Lord Hardwicke ruled that the ecclesiastical court could not prosecute the Middletons for getting married at the wrong time, ‘that circumstance having been … introduced by the canons of 1603’ (p.802).

It should be noted that canon 102 did not make it an offence to marry outside the hours of 8 to 12.  It merely attached a condition to the grant of a marriage licence.  The ecclesiastical court had wrongly deduced that, if all marriage licences are subject to a compulsory time condition, it must be a criminal offence to get married outside that time.  But canon 102 did not say this.

Thus the injustice to the Middletons, such as it was, was not due to canon 102 but from a misunderstanding of canon 102 on the part of the ecclesiastical court.  Lord Hardwicke did not impugn or ‘quash’ canon 102 or any other canon.

Because the case concerned a clandestine marriage, Lord Hardwicke did discuss the ‘5 canons [of] 1603 that relate to clandestine marriages’ (p.789), canons 62 and 101-104.  However, discussion showed that the canons were not relevant to the case.  ‘It seems to be plain from [their wording] that none of these canons do in the words or terms of them affect the parties contracting [marriage] [i.e ‘the laity’], except the last clause of canon 104, which relates to persons married by colour of void licences … but that is not the present case…’ (p.789).

Lord Hardwicke therefore concluded that ‘For this reason [their own wording] it does not appear to us that the provisions of the canons of 1603 do extend to the laity in such a case as is now before the court’.

However, he went on to speculate ‘But, supposing lay persons might be within the words of the canons in 1603, the next consideration is, whether the authority by which those canons were made can bind the laity as to this matter’.  It was only from this speculative basis that Lord Hardwicke formulated his famous ‘rule’.

Thus the tension between James I’s view of the canons and Lord Hardwicke’s may have been exaggerated.  Middleton v Crofts makes clear that a canon will certainly bind the laity if it is supported by statutory authority.  However, there are two further confusions about the ‘binding’ effect of ecclesiastical canons.

First, there is confusion between the ancient constitutional principle of consent to legislation and the modern principle of religious freedom and ‘human rights’. 

Lord Hardwicke held that the canons could not bind the laity because, and only because, the laity had not consented to them.  The canons were made by the convocations, which were then composed exclusively of clergy.  The General Synod, by contrast, includes lay representatives as well as clergy, so there is no constitutional reason why canons passed by the General Synod should not bind laity as much as clergy.

Ecclesiastical law will ‘bind’ the laity just as much as employment law, criminal law or tax law.  However, ecclesiastical law, like secular law, must respect the principle of religious freedom.  The question for modern secular courts is therefore different from that addressed by Lord Hardwicke.  It is not whether the laity have consented to the canons (they have), but whether the canons are consistent with the human rights of the laity.

The second confusion concerns the very word ‘bind’.  A rule ‘binds’ when it imposes duties or liabilities or sanctions, or where it restricts legal rights.  It will not bind people merely because it affects or concerns them in some way. 

Thus a doctor is bound by professional rules when examining a patient.  The patient is not bound by those rules.  However, the patient is inevitably affected by the rules, because they govern the doctor’s treatment of the patient.  Indeed the very purpose of professional rules is to protect the patient.

However, modern discussion of the canons tends to assume that even the remotest, slightest effect amounts to ‘binding’.  The word ‘bind’ is interpreted rather loosely!

Yet Lord Hardwicke never suggested that canon 102 could not attach a compulsory time condition to marriage licences.  Canon 102 ‘binds’ the licensing authority, which can only grant a licence subject to this condition.  This obviously affects the couple seeking the licence, but it does not impose a duty or liability on them, nor does it restrict any legal right of theirs.  By definition, there is no right to a licence.

Canon B30 and Sham Marriages

Canon B30(3) provides that ‘It shall be the duty of the minister, when application is made to him for matrimony to be solemnised … to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth …’.  That doctrine is ‘expressed and maintained’ in the Prayer Book marriage service (B30(2)).

The duty imposed by Canon B30 would seem to be very recent.  There is no reference to such a duty in the canons of 1603, in the 1662 Prayer Book, or in Phillimore’s Ecclesiastical Law.

In April 2011 the House of Bishops issued ‘guidance’ to clergy concerning the solemnisation of marriage where one of the parties is from outside the European Economic Area (EEA).  This guidance was issued in response to concern that ‘sham’ marriages were being contracted in order to evade immigration controls.

The guidance acknowledges that non-EEA nationals ‘have the same rights to marry in the Church of England as British citizens’ (page 1).  However, it also refers to Canon B30 in the following terms:

‘If a couple [at least one of whom is non-EEA] decline to attend meetings for the purpose of giving the instruction required by the Canon the member of the clergy concerned will be prevented from carrying out his or her canonical duty.  In those circumstances he or she should inform the couple that the marriage may not proceed until such time as the duty has been carried out.’ (pp2-3).

Canon B30 undoubtedly imposes a duty on the officiating minister to offer religious instruction to the couple, prior to their marriage.  It is not clear, however, that the couple are obliged to receive this instruction.  On its wording, canon B30 does not impose such an obligation.  It is addressed to the officiating minister, not to the couple.  It merely assumes the willingness of the couple to receive instruction.

It is, of course, true that the minister is ‘prevented’ from giving religious instruction if the couple refuse to receive it, but that fact does not put the minister in breach of Canon B30.  A minister cannot be required to perform a duty that has been rendered impossible by the attitude of the couple.

If canon B30 does purport to impose an obligation on the couple to receive religious instruction, this may cause constitutional difficulties.  Canon B30 was promulged by the Convocations in the 1960s.  It could therefore be argued that it cannot ‘bind’ laypeople, only clergy (possibly lay ministers as well), under the rule associated with the case of Middleton -v- Crofts (1736) 26 English Reports 788, because laypeople did not consent to it. 

There is also an obvious conflict between an obligation to receive religious instruction and the ‘human rights’ of the couple.  They should not be forced to receive a religious instruction that may contradict their own religious or philosophical beliefs.

The Revised Canons

For the purposes of legal study and analysis, the revised canons may be divided into 5 categories:

(1) regulations made under statutory power conferred by a ‘parent’ Measure, in effect secondary legislation

(2) regulations made under the ancient legislative power of the Convocations, recognised by common law and now vested in the General Synod (Synodical Government Measure 1969, s.1 and schedule 1)

(3) declarations or summaries of, or references to, statute and common law already in force

(4) mere exhortation, advice and guidance

(5) doctrinal statements

In the first edition of the revised canons, published in 1969, the canons comprised only categories (2) to (5).  Category (1) canons were not introduced until the 1970s. 

A single canon may fall into more than one category, and different provisions of the same canon may fall into different categories.  Categories (3) to (5) are not proper legislation at all.  The difference between categories (2) and (3) is often unclear.  A particular canon may be introducing a new rule for the very first time, or merely restating an old rule.

The 1969 canons resemble a legal ‘handbook’, a guide to the relevant law for those involved in the ministry of Word and Sacrament.  The 1969 edition was the fruit of the 1947 report The Canon Law of the Church of England.  The draft canons appended to the 1947 report cite statutes, legal commentaries and case law for their authority.  This suggests that the intention was to declare or clarify existing law, rather than make new law.

Category (4) canons may have derived from category (3).  They originated at a time when people were legally obliged to attend their parish church, and to pay for its repair through church rates.  Such obligations are, of course, no longer enforceable.  Hence they have been recast as guidance for churchgoers, particularly those involved in parochial administration.  Many of the canons in section F (‘Things appertaining to Churches’) take the form of guidance.

The ‘parent’ Measures in category (1) of the revised canons were passed between 1972 and 1993, a period of approximately 20 years:

(1) Admission to Holy Communion Measure 1972

(2) Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s.9(2), though inserted much later by the Clergy (Ordination) Measure 1990, s.1

(3) Deaconesses and Lay Ministry Measure 1972

(4) Deacons (Ordination of Women) Measure 1986

(5) Ecumenical Relations Measure 1988

(6) Legal Aid and Miscellaneous Provisions Measure 1988

(7) Miscellaneous Provisions Measure 1976

(8) Priests (Ordination of Women) Measure 1993

(9) Worship and Doctrine Measure 1974

The Admission to Holy Communion Measure provides that ‘the rubric … shall not prevent the General Synod from making provision by canon and regulations …’.  The wording of the other ‘parent’ Measures is that ‘It shall be lawful for the General Synod to make provision by canon …’.

Whatever their benefit to the Church, the post-1969 canons have spoiled the character of the 1969 canons as a coherent, unified code or handbook of law for those involved in ministry.  Their subject-matter is the same as that of the 1969 canons, but their character is different.  They are the secondary legislation of different parent statutes, so do not sit comfortably with a single unified code.  Nor were they introduced simply to clarify existing law.  Rather, their purpose was to reform the Church’s ministry of Word and Sacrament.  This required the authority of primary legislation.

The Worship and Doctrine Measure 1974 was central to the policy of reform.  That Measure and the canons promulged under its authority (canons B1-5) form a code of law in their own right, regulating the public worship of the Church following the abolition of the 1662 regime.

The other post-1969 legislation is a response to the sociological changes that have occurred since 1662.  The right of baptised non-Anglicans to receive Holy Communion is confirmed (Admission to Holy Communion Measure).  Joint worship and ministry is permitted between the Church of England and non-conformist Churches under the Ecumenical Relations Measure 1988.  The 1988 Measure and the canons promulged thereunder (B43-44) constitute a code of ecumenical law, similar to the 1974 code of liturgical law.

Lay ministers are given a considerable responsibility for ministry (Deaconesses and Lay Ministers Measure 1972).  Women may be ordained (1986 and 1993 Measures).  Divorced persons may also be ordained (amended 1964 Measure).  Formalities of admission to office that are deemed anachronistic may be abolished (1976 Measure).

The doctrinal canons of category (5) are not secondary legislation, but they now depend for their legal force on the definition of doctrine now contained in the Worship and Doctrine Measure 1974, s.5(1).

Canons are amended from time to time to take account of changes in the statute law, but such amendments do not constitute secondary legislation.

It is nearly 20 years now since the canons were last used as a form of secondary legislation (the 1993 Measure).  The next use of canons as secondary legislation is likely to be the ordination of women to the episcopate.

Churchwardens and Chattels

It is generally supposed that churchwardens are the legal owners of the contents of their parish church, its furniture, plate and ornaments.  They are said to hold these chattels as a corporation, or to be ‘quasi a corporation’ for the purpose of holding them.

Canon E1(5) seems to confirm this.  It provides that ‘In the churchwardens is vested the property in the plate, ornaments and other movable goods of the church … [which], on going out of office, they shall duly deliver to their sucessors …’.

There is apparent support for canon E1(5) from the Mission and Pastoral Measure 2011, schedule 6.3(3) (successor of the Pastoral Measure 1983) which refers to movable property used for the purposes of a church or churchyard vested in the churchwardens.  However, this provision envisages that movable property may vest in the parochial church council as well. 

There is also support from Blackstone’s Commentaries:

‘Churchwardens … are taken, in favour of the church, to be for some purposes a kind of corporation at the common law: that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish’ (1, 382).

However, it should be noted that this dictum does not hold that all church chattels per se vest automatically in the churchwardens.

Phillimore states that ‘the [churchwarden] has not only the custody but also the property of the goods belonging to the church and may maintain [legal] actions for them’ (Ecclesiastical Law, 2nd edition 1895, p.1480).  However, he says earlier that ‘churchwardens are a corporation for the purpose of the custody of the ornaments of the church’ (p.1465).

There are difficulties with the corporate status of churchwardens.  It is said that a corporation sole can never own chattels, because chattels, unlike land, can never be without a legal owner.  Thus an incumbent cannot ex officio own chattels.  A corporation aggregate, such as a cathedral chapter, may own chattels, because it has perpetual succession and so ‘never dies’.  This suggests that churchwardens cannot hold chattels unless they satisfy the definition of a corporation aggregate.

In Fell v Official Trustee (1898) 2 Chancery 44, the Court of Appeal expressed doubts about the corporate status of churchwardens:

‘It is said that [churchwardens] are a corporation.  [But] there is an ambiguity about that … it is [not] made out by the custom of London, or by any Act of Parliament … that they are a corporation in the full sense of the word.  They are in the City [of London] a corporation for the purpose of holding land and for the purpose of the devolution of property but … they are [not] … a person in point of law … nor can [they] sue or be sued by any corporate name’ (p.51).

Another judge in the same case stated that ‘churchwardens are not a corporation.  They are … quasi a corporation for certain purposes and in the City of London they are a corporation for the purpose of holding lands: but beyond that they are only officers …’ (p.59).

An anonymous early case held that ‘all the parishioners are the [corporation] and the churchwardens only a name to sue by in personal actions: but the property is in the parishioners’ (22 English Reports 174).

Even if churchwardens are a corporation capable of holding chattels it does not follow that the movable contents of churches and churchyards automatically vest in them.  It is arguable that the donors, or their heirs, are the rightful owners.  In the case of many ancient chattels, the donors and their heirs may be unknown.  If it is acknowledged that the freeholds of churches and chapels can still vest in the heirs and successors of their original donors, it is a bold assertion that title to chattels automatically vests in the churchwardens.

It is further arguable that canon E1(5) could not, proprio vigore, defeat the claims of lay donors of property or their heirs, under the rule associated with Middleton v Crofts (1736) 26 English Reports 788 that canons may not ‘bind’ the laity. 

The parochial church council (‘PCC’) also has a claim on church chattels.  It is the successor of the parish vestry.  It comprises the representatives of the parish.  The Parochial Church Council (Powers) Measure 1956 provides that every PCC is a corporation with perpetual succession (s.3).  It is therefore capable of owning chattels.

The Church courts, under the influence of the late Chancellor Newsom, have stressed that all dealings with church chattels, like dealings with consecrated land, must be subject to the faculty jurisdiction.

In St. Gregory’s, Tredington (1971) 3 All England Reports 269, Newsom followed canon E1(5) in holding that the churchwardens were legal owners of some valuable communion wine flagons.  However, he also held that a sale by the churchwardens, even though they are the legal owners and selling to a bona fide purchaser, would be void without the consent of the PCC and the authority of a faculty.  Presumably the justification for this strictness is that a faculty is a requirement of law so no purchaser may plead ignorance of it.

In St. Mary’s, Balham (1978) 1 All England Reports 993, Chancellor E Garth Moore described the churchwardens as ‘temporary custodians’ of church property only (p.996), thus apparently contradicting canon E1(5).

St. Anne’s, Wrenthorpe (1994) 2 Weekly Law Reports 338 concerned the disposal of 33 redundant items of church furniture.  The consistory court held that all the items were legally the property of the churchwardens, notwithstanding their different provenance.  Citing canon E1(5), the court asserted the churchwardens’ title in the strongest terms: ‘the items … are not held by the [churchwardens] as custodians or as trustees.  They are the owners of the items’ (p.347).  Their ownership is ‘legally unconditional’ (p.346). 

These difficulties and inconsistencies over the churchwardens’ title may not matter much in practice, as there appears to have been remarkably little controversy about the ownership of church chattels.  The ecclesiastical judge in St. Mary’s, Faversham (1986) 1 All England Reports 1 stated that he was unaware of any case in which the secular courts had restrained an ecclesiastical court from deciding ownership of chattels.  There have been no reported cases since then.  Dealings with chattels have been left to the Church courts.

The PCC and Public Authority: The Wallbank Case

Editorial, Ecclesiastical Law Journal (Issue 34, January 2004, pp247-8)

The learned editor appeared for the parochial church council (‘PCC’) in the case of Aston Cantlow PCC v Wallbank (2003) UK House of Lords 37, as junior counsel. 

The case seems to have been fiercely contested.  Its outcome was an unqualified victory for the PCC and the Church of England.  The House of Lords ruled that Mr and Mrs Wallbank, as lay rectors, were liable for the repair of the chancel of Aston Cantlow parish church.  It further held (though with a hint of reluctance) that that liability was an unlimited personal liability.  It did not attach only to the profits of the rectorial property (if any), but to every last penny that the lay rectors possessed.

In giving his account of the case, the editor does not dwell on its disastrous consequences for Mr and Mrs Wallbank.  Instead he concentrates on the conclusion in the case (held by a majority of the Law Lords, but not by Lord Scott or the Court of Appeal) that a PCC is not a public authority for the purposes of the Human Rights Act 1998.

The editor attaches great significance to this conclusion.  ‘The importance of the House of Lords’ decision for the Church of England lies not in the provisions of the Chancel Repair Act 1932 [which had impacted so adversely on Mr and Mrs Wallbank] but rather in the discussion of the nature of the Church itself and its place in society and government’ (p.247).

The Human Rights Act enables ‘victims’ to go to court to vindicate their human rights against oppressive public authorities.  A public authority cannot be a ‘victim’, only an ‘oppressor’.  The editor’s point is that, if PCCs had been held to be public authorities under the Human Rights Act, they would ‘lose the status of ‘victim”.  They would therefore be unable to claim breach of human rights against a secular public authority.

The ‘human right’ most obviously associated with the Church is the right to practice one’s religion.  On the editor’s view the Wallbank case is an important safeguard of Anglican religious freedom.  ‘Not being classified a public authority, the Church of England will remain free to engage in its mission and witness … on an equal footing with all other denominations and faith communities in the UK’ (p.248).

The reference to ‘an equal footing’ makes the point that non-Anglican Churches and ‘faith groups’, being constituted on a voluntary basis only rather than ‘established by law’, would not be in danger of being considered public authorities under the Human Rights Act.

It is argued that this exegesis of the Wallbank case is somewhat farfetched.  The PCC’s functions do include ‘co-operating with the incumbent in promoting in the parish the whole mission of the Church’ (PCC (Powers) Measure 1956, s.2(2)(a)).  Of course it is possible to imagine a secular authority taking some action or decision that would impede a PCC’s missionary work.

However, the PCC’s missionary function, indeed all its legal functions, are exercised on behalf of, and for the benefit of, the parishioners, not itself.  Thus if the secular authority’s action impeded the PCC’s function and thereby infringed the parishioners’ right to practice their religion, the parishioners, not the PCC, would be the victims of this action. 

As victims, the parishioners (an individual parishioner or a group of parishioners) could bring a Human Rights Act claim against the secular authority, even if the PCC could not.  Indeed the members of the PCC could bring such a claim.  The only possible restriction of their ‘human rights’ is that they would have to bring a joint claim in their own names, rather than in the corporate name of the PCC.

If the secular authority’s action were to impede the PCC’s function but without infringing the human rights of the parishioners, there is no reason why the PCC should be enabled to bring a Human Rights Act claim.  Judicial review is always available to the PCC if a secular authority exceeds or abuses its powers.  (A public authority can apply for judicial review of the action of another public authority.)