Doing Justice to Faculties

by Philip Jones

A faculty is a permission to do something which there is no right to do.  A faculty is not an order to do something.  A lawful order or duty to do something necessarily confers the right to do it.  A person who has the right to do something does not need permission to do it.  A faculty confers or creates a legal right that did not previously exist.

Yet there is much confusion over the nature of an ecclesiastical ‘faculty’.  A licence and a faculty are really the same thing.  The terms are used interchangeably in the older ecclesiastical case reports.  Yet in modern ecclesiastical law a permission by a court to deal with a church or churchyard is always described as a ‘faculty’, while all other permissions, whether to marry in church, to officiate as a minister, to reside out of the official residence, or to engage in a secular occupation, are described as ‘licences’.  This insinuates the idea that faculties and licences are different.

Statute law seems to misuse the word ‘faculty’ on at least two occasions:

(1) The Faculty Jurisdiction Measure 1964, s.1.  The ‘faculty’ referred to here is actually a vesting order.  S.1 empowers the consistory court to make an order, though described as a ‘faculty’, vesting part of a church building in the freeholder of the church.

(2) The Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.12(2).  The ‘faculty’ referred to in this subsection is really an order, backed by a threat.  It is a compulsory faculty.  If the work ‘permitted’ by the faculty is not carried out by the petitioner, the archdeacon will carry it out at the petitioner’s expense. 

The grant or refusal of a faculty is an administrative rather than a judicial function.  It does not engage any legal right or legal wrong.

Norman Doe acknowledges that ‘In many respects, the faculty system itself contains a strong administrative element similar to functions performed by local planning authorities’ (The Legal Framework of the Church of England 1996, p.143).  Yet ecclesiastical judges have remarkable difficulty appreciating the distinction between the administrative and the judicial function.

The case of St. Mary’s, Barnes (1982) 1 Weekly Law Reports 531 concerned a parish which wished to build a new parish church to replace one that had burned down.

The faculty petition was duly presented, but was referred to the bishop, not the chancellor.  The bishop granted the faculty without consulting the chancellor.  The chancellor was clearly very annoyed at not being consulted.  His principal objection to the bishop’s involvement was constitutional.  The bishop’s action ‘involved a breach of the constitutional principle of the separation of the functions of the legislative, executive and judiciary and a return to the absolutism of the middle ages condemned in this country since at least the middle of the 17th century’ (p.532).

The chancellor cited no authority in support of this supposed constitutional principle, which is associated with the American constitution rather than the British.  The parishioners in this case had simply asked for permission to rebuild their church, and the bishop had agreed.  It was a little far-fetched to describe such action as ‘a return to the absolutism of the middle ages’.  The action was consistent with the bishop’s cure of souls and pastoral oversight.

Moreover the chancellor failed to appreciate that the case did not involve any judicial function, merely an administrative one.  He held that faculty petitions should be dealt with ‘so that justice is done’ (p.532).  He lamented that, because of the reference to the bishop ‘no one can say that justice can manifestly be seen to have been done’ (p.534).

This prompts the question ‘justice to/for whom?’.  Justice must be done to a person or persons.  Nobody’s legal rights were at stake in the case, and no remedy or penalty was sought for or against anyone.  No injustice was alleged.  The petitioners were merely seeking permission to do something which they lacked the right to do.

It is argued that a faculty case does not require the court or other licensing authority to do justice, but rather to act justly.  A faculty cannot override a legal right.  If an authority purports to grant a faculty which infringes a legal right, it is exceeding its jurisdiction and the faculty is illegal.  The authority must respect the limits of its jurisdiction.

The faculty jurisdiction must also be exercised justly within its legal limits.  It would obviously be improper for the licensing authority to yield to improper pressure to grant or refuse a faculty, or to appear to be biased in some way.  The authority should consider all relevant factors and disregard irrelevant ones.  Reasons should be given for any decision.

In other words, the faculty jurisdiction should be exercised in accordance with the same well-established principles of administrative law that govern the exercise of a discretion.  However, the exercise of a discretion is quite different from the judicial function of doing justice.

The confusion in St. Mary’s, Barnes about the nature of the faculty jurisdiction has deep roots.  Peter Winckworth’s book A Verification of the Faculty Jurisdiction (1953) helps traces the confusion. 

The faculty jurisdiction first became prominent in the 19th century as a device for combating illegal ‘ritualism’.  Winckworth notes that

‘the Archbishops and bishops … considered that, by more frequent recourse to the faculty jurisdiction, the ritualism … might be checked without the offending clergyman having to be sent to gaol [a reference to the Public Worship Regulation Act 1874, which provided for this draconian step] … the attack [on ritualism] was to be shifted from bringing a criminal suit … to bringing a civil suit for a faculty to remove the offending ornament …’ (p.33).

This account suggests that the faculty jurisdiction was used as a means of enforcing liturgical discipline, rather than as a system of granting licences.  If the vicar indulged in controversial ritualistic practices, the Church authorities would not commence disciplinary action that would risk making a martyr of him.  Instead they would issue a faculty to the churchwardens, ‘permitting’ them to remove the ornaments and decorations involved, and so deprive the vicar of the opportunity of ritualism.

These ‘faculties,’ issued in the late 19th and early 20th centuries to oppose ritualism, were not really permissions so much as disguised orders to do, or refrain from doing, certain acts.

Wincworth relates that the so-called ‘chancellors’ report’ of 1913, which laid the foundations of the modern faculty jurisdiction, stated that ‘every application for a faculty is a cause in a court of law which may become contentious and … has to be dealt with … on judicial principles and by judicial methods’ (p.8).

This perpetuated the confusion that had developed in the later 19th century.  It may be correct to speak of a ’cause of faculty’ , but this may be confused with a cause of action.  A cause of action concerns a right or wrong.  A person has a cause of action if his legal rights have been infringed in some way by another’s wrong.  If a person requires a faculty he cannot have a cause of action.  If a person has a cause of action he requires not a faculty but a remedy.  A cause of faculty is based upon a need or a wish, not a right or a wrong.

It is true, of course, that faculty cases can be ‘contentious’, the subject of dispute.  An application for a faculty may be opposed (though most faculties are unopposed).  To that extent they may resemble contested causes of action.

However, even a contentious faculty case still does not involve legal rights or wrongs, merely differences of opinion and sentiment.  One party may think that a proposed stained-glass window is fine and beautiful and an aid to religious devotion, another may think it ugly and mediocre and an unnecessary expense.  The resolution of such a dispute is a pastoral rather than a judicial exercise.

As Doe observed, a faculty, being a permission to deal with land and buildings, resembles secular planning permission.  The law views the grant or refusal of planning permission as an administrative, not a judicial, function.  This is made clear by two cases, B Johnson & Co v Minister of Health (1947) 2 All England Reports 395 at 399, and R v Secretary of State for the Environment ex parte Alconbury (2001) 2 Weekly Law Reports 1389.

It is true that a faculty / permission, once it has been granted, prima facie confers or creates a legal right.  Thus the revocation of a faculty, as distinct from the original grant, may be a judicial function, because it deprives a person of a legal right.

The Clergy Discipline Measure 2003, s.8(2) and the Pluralities Act 1838, s.98 both provide that licences to officiate may be revoked only after a judicial process.  However, when exercising the faculty jurisdiction, Church courts tend to exclude any legal right by granting faculties subject to ‘further order’.  This means that the faculty can be revoked, or its terms limited, should circumstances change, but without infringement of a legal right.