The PCC and Public Authority: The Wallbank Case

by Philip Jones

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.)