Ecclesiastical law

Month: June, 2012

Places of Worship: The Segerdal Case

R v Registrar-General ex parte Segerdal (1970) 1 All England Reports 1 (High Court) and 3 All England Reports 886 (Court of Appeal)

The California-based Church of Scientology wished to register an English chapel under the Places of Worship Registration Act 1855. 

The minister of the chapel, Mr Segerdal, provided the required certificate to the Registrar-General.  However, the Registrar refused to register the chapel.  He accepted that the scientologists met together in the chapel, but denied that they met there for the purpose of religious worship.

Mr Segerdal applied for judicial review of the Registrar’s decision.  He produced literature published by the Church of Scientology, in which it described itself as a ‘non-denominational’ religion with a creed containing two references to God.  The literature also referred to the holding of ‘church services’.

Mr Segerdal’s application was dismissed by the High Court, for two reasons:

(1) under the 1855 Act, the Registrar ‘is not only entitled but bound to enquire whether the place mentioned in the certificate is indeed a place … for religious worship (1, p.6) and

(2) on the evidence, the Registrar had been ‘fully justified in refusing to register the chapel as a place of meeting for religious worship’ (3, p.10).

The courts’ point was that, if the Registrar did not inquire whether a place certified to him was indeed a place of worship, the register would become inaccurate and meaningless.  Hence they concluded that the Registrar’s function ‘is not merely ministerial’ (1, p.6).

Lord Denning expanded on this point in the Court of Appeal:

‘because of the extreme latitude given to the certifier … a mere attendant or occupier can[not] certify a place, when he may have little or no ground for his certificate, and yet call on the Registrar-General to record it … without enquiry.  That would lead to many abuses.  No, that cannot be’ (3, p.888).

The procedure of the 1855 Act must be clearly understood.  The Act provides that places of worship are certified to the Registrar, not by him.  It is the occupant, minister or other attendant of the place of worship (in this case, Mr Segerdal) who certifies it as such, not the Registrar.  If Parliament had intended to constitute the Registrar as the certifying authority, it would have provided that the occupant, minister etc should apply to, or petition, the Registrar to certify their chapel as a place of worship. 

The judgments in the case raise the suspicion that, although the courts did formally acknowledge that Mr Segerdal was the certifier, they nevertheless treated him as if he was a mere applicant for certification.  In effect they attributed to the Registrar the function that the Act conferred on Mr Segerdal. 

The question of certification drew an uncharacteristically snobbish remark from Lord Denning: ‘the certifier may be a lowly or ignorant person who is not capable of knowing what is a place of meeting for religious worship’ (3, p.889).  As a traditional Church of England man, he would have had little natural sympathy for a Californian cult.  His colleague, Lord Justice Winn, even hinted at a judicial prejudice against scientology, owning to ‘a possibly irrational, possibly ill-founded, but very definite opinion …’ (3, p.891). 

Yet, as Lord Denning himself observed (3, p.887), the purpose of the 1855 Act was to grant freedom of worship to all, regardless of social or educational background.

Freedom of worship demands that people, however lowly or ignorant, must be free to decide for themselves what religious worship is.  It is not much freedom if people can only worship according to a fashion that the secular state regards as worship.  The 1855 Act therefore provides for a regime of self-certification.

Moreover, the certifier, whatever his limitations, is better qualified than the Registrar to certify that his chapel or meeting place is indeed a place of religious worship.  He will be familiar with the place and with the activity that goes on there.  The Registrar is not.  The definition of ‘religious worship’ is a theological or sociological question.  What special qualifications or expertise does the Registrar possess to answer this question?  The 1855 Act does not provide that the Registrar should possess such qualifications, nor that he should take expert advice on the question.

S.8 of the 1855 Act empowers the Registrar to cancel a certificate.  However, this provision only applies to a place of worship that has previously been registered but ‘has wholly ceased to be used as such’.  Under s.8 the Registrar is merely required to determine whether or not religious worship still goes on at the registered place.  This is a simple question of fact, which is presumably ascertained by a letter to the last known occupant or minister of the place.  S.8 does not require the Registrar to judge whether a particular activity is or is not religious worship.

Lord Denning was, of course, correct that the procedure under the 1855 Act is open to abuse.  As he observed, registration under the 1855 Act confers exemption from rates and other privileges (3, p.887).  Like all statutes, the 1855 Act must not become an instrument of fraud, such as tax evasion, sham marriage or some other dishonesty. 

The Registrar must therefore be entitled to refuse to register a dishonest certificate.  In this case, however, there was no question of dishonesty.  Mr Segerdal genuinely believed that his chapel was a place of worship.

It is possible that the meaning of ‘religious worship’ was a less complex question in 1855 than it became in later years.  S.3 of the 1855 Act refers to ‘the religious worship of Protestant dissenters or other Protestants, or Roman Catholics, or persons professing the Jewish religion’.  Parliament in 1855 would have known nothing of Californian cults and oriental mysticism.

However, s.3 makes clear that the Act applies to ‘any other body or denomination of persons’.  It is not restricted to some ‘mainstream’ Judaeo-Christian tradition of worship.     

The courts suggested that ‘religious worship’ must involve ‘veneration to a being regarded as divine’ (1, p.7).  As Lord Denning recognised, this definition had implications for groups other than the Church of Scientology, which do not worship divine beings.  He cited the example of Buddhists (3, p.890).  Quakers and Unitarians (both well-known sects by 1855) might also find it rather hard to satisfy the definition.

It is arguable that the Registrar should refuse to register a certificate which, though not dishonest, is plainly wrong and misconceived in representing a particular place as a place of worship.  The reports of this case show that the courts examined the scientologists’ literature in detail and engaged in an erudite discussion of the meaning of the words ‘religion’, ‘worship’ and ‘prayer’. 

This depth of examination of the scientologists’ creeds and practice demonstrates that Mr Segerdal’s certificate was not plainly wrong and misconceived.  If it had been, a detailed, erudite discussion would not have been necessary.  

The High Court observed that ‘it is a matter of controversy whether scientology is a religion at all’ (1, 8).  Mr Segerdal must therefore have had arguable reasons for representing his chapel as a place of worship, even though those reasons were disputed.  Any doubt or controversy should have been resolved in favour of his certificate.   

It is therefore argued that, as the minister and certifier of the chapel, his certificate should have been accepted for registration.  That would have been consistent with both the wording and the purpose of the 1855 Act, which was to ensure freedom of worship by a process of self-certification.

A Fair-Minded and Informed Observation of Cooper v Gair

Decision of a bishop’s disciplinary tribunal given in November 2008, Chancellor Rupert Bursell presiding.  Unreported, but a copy of the decision is available on the website of the Church of England, accessed 18th June 2012.

S.22 of the Clergy Discipline Measure 2003 contains provisions that are designed to ensure the impartiality of disciplinary tribunals:

(1) the members of the tribunal must be drawn from outside the diocese  whence the case originated

(2) the President of Tribunals must be ‘satisfied that there is no reason to question the impartiality’ of any member of the tribunal

(3) the accused clergyman has the right ‘to make representations as to the suitability’ of each member of the tribunal.

S.23 of the 2003 Measure contains similar provisions concerning the Vicar-General’s Court, which decides disciplinary complaints against bishops and Archbishops.

Provision (1) above was introduced to avoid a repetition of the unfortunate case of Burridge v Tyler (1992) 1 All England Reports 437.  A clergyman, Tyler, was convicted by the consistory court of his diocese of adultery with two women of his parish.  One of the assessors who decided the case was a friend both of Tyler and of one of the women and her husband.  Before the case came to trial, the assessor even visited Tyler on two occasions to discuss the case, and formed a preliminary view of his guilt.

The Court of the Arches was therefore obliged to order a retrial, at considerable expense to the Church.  It made the obvious point that, if disciplinary cases were to be determined within the diocese, ‘it is highly likely that clerical assessors will inevitably have some acquaintance with an accused [clergyman]’ (p.439).

Provision (1) therefore seeks to protect the tribunal from any lack of impartiality arising from personal acquaintance or connection between the tribunal members and the parties to the case and their witnesses.  But a tribunal’s impartiality may be endangered by other factors than personal acquaintance.

Provision (2) may also reflect the experience of Burridge v Tyler.  It emphasises the impartiality of the individual members of the tribunal, but not of the tribunal as a whole.  The assumption is that, if each member is impartial, the full tribunal must also be impartial.

However, it could be argued that impartiality may sometimes require a certain balance or composition of members of a tribunal.  Employment tribunals normally include one trade union representative and one representative of employers’ organisations.  It is thought that representation of the interests of both sides of the employment relationship enables employment tribunals to decide disputes impartially.

The President of Tribunals is required to satisfy himself that the tribunal members are impartial, but impartiality per se is determined by law, not by the President.  Case law suggests that impartiality is lost if

‘a fair-minded and informed observer … would conclude that there was a real possibility that [the tribunal] might be … biased’ (AWG Group Ltd v Morrison (2006) 1 Weekly Law Reports 1163, Court of Appeal, p.1167). 

This test of apparent bias therefore resembles a ‘reasonable bystander’ test.

Provision (3) refers to the suitability of tribunal members.  ‘Suitability’ is, of course, a broader criterion that impartiality.  A tribunal member can be unsuitable even if impartial.  The Code of Practice issued under the 2003 Measure suggests that the President should accept an objection to a tribunal member based on unsuitability if the objection has ‘any substance’ to it (para 187). 

In Cooper v Gair, the Rev Mr Gair was accused of sexual misconduct.  A disciplinary complaint was made by the archdeacon, who was a woman (Ms Cooper).  One of the clerical members of the disciplinary tribunal was also a woman. 

Mr Gair informed the President of Tribunals that he ‘[held] to the integrity that does not recognise the validity of women’s priestly orders’, in other words he was opposed to women priests.  He therefore requested that

(1) both the clerical members of the tribunal (though not the lay members) should be male and

(2) one of them should be a member of a priestly society that shared his views on female ordination.

When pressed to explain the reason for this request, Mr Gair stated

‘I have yet to meet one woman in orders who accepts my integrity in the matter of believing her orders invalid … I cannot believe that my view on this would fail to aggravate her impartiality …’.

The tribunal acknowledged, correctly, that it was a public authority under the Human Rights Act, and therefore subject to Article 6 (the right to an independent and impartial tribunal).  However it rejected Mr Gair’s request:

‘the tribunal as a whole, and the [woman priest member of the tribunal] in particular … gave very careful preliminary consideration to the possible impartiality [sic – presumably ‘lack of impartiality’] suggested by Mr Gair … we were each satisfied that neither the tribunal as a whole nor any individual member lacked any impartiality’.

This conclusion indicates that the tribunal failed to apply the proper test of impartiality, as described in the case law cited earlier.  Of course, the tribunal members were satisfied in their own minds that they were impartial.  We all think that we are impartial.  However, the proper test is what a fair-minded and informed observer would think, not what the tribunal itself thinks. 

It is argued that, if the correct test had been applied, a different conclusion would have followed.  An informed observer would know that

(1) female ordination is a controversial and divisive issue in the Church of England, a cause of ill-feeling, and has been so for many years, and

(2) opponents of female ordination are a small minority.

If a woman priest sits in judgment on a clergyman who is a known opponent of women priests, a real possibility of bias must occur to a fair-minded observer.  That is not to accuse the woman priest of actual bias.  The mere possibility of bias in the mind of an observer is enough.

Indeed there is a real possibility of bias on the part of any tribunal appointed to judge an opponent of women priests, because he belongs to a small and unpopular minority.  It is therefore argued that the requirement of impartiality demands that a tribunal appointed to judge such a person should include at least one member who is also a known opponent of female ordination (as Mr Gair requested).

The Code of Practice suggests that, where a disciplinary case concerns a person from a ‘minority ethnic background’, the tribunal should include ‘at least one member … from a similar ethnic group or background’ (para 186).  There is also a general obligation to be ‘sensitive to relevant gender and ethnic backgrounds’.  This wording suggests that an accused woman priest would be entitled to insist that another woman priest be appointed to the disciplinary tribunal.  However, no similar allowance is made for an opponent of female ordination. 

The only reference to the women priests controversy in the clergy discipline regime would seem to be in the Code of Practice, which provides that the diocesan bishop ‘may’ consult the provincial episcopal visitor (or ‘flying bishop’) if the accused clergyman is from a parish that is under the visitor’s oversight (para 95).

Gilbert v Buzzard: Funerals and Fees

(1820) 161 English Reports 1342

This is probably the leading case on the common law right of burial in the churchyard.  Mr Gilbert wished to bury his deceased wife in an iron coffin, as a protection against graverobbers.  The churchwardens, including Mr Buzzard, refused to allow the interment of the coffin, following a resolution of the parish vestry disapproving iron coffins.

The secular courts refused to intervene in the dispute.  Lord Chief Justice Abbott held that

‘the right of sepulture is a common law right alone: but … the mode of burial is of ecclesiastical cognizance alone’ (p.1343). 

Mr Gilbert then complained to the local consistory court (diocese of London).

The Chancellor, Sir William Scott (the future Lord Stowell), noted that

‘the law … certainly says that a parishioner has a right to be buried in his own parish churchyard: but it is not quite so easy to find the rule … that gives him the right of burying a large chest or trunk along with himself’ (p.1348).

Most people were originally buried only in shrouds, not coffins, but burial in coffins was evidently more widespread by the early 19th century.

Thus the Lord Chief Justice and the Chancellor both declined to extend the right of burial to burial in a coffin, although the Chancellor acknowledged that coffin burial was prompted by ‘very natural and laudable feelings’.

The practical difficulty with coffin burial was the burden that it imposed on the parish.  Coffins took up more space in the churchyard.  They also retarded the ‘dissolution’ of the human remains in the soil, preventing the use of the ground for future burials.  The parish was therefore obliged to purchase and maintain additional burial grounds.

The Chancellor resolved the dispute pastorally.  He ordered the parish to fix a scale of burial fees, imposing charges for digging the grave and interment in coffins of wood or iron.  A table of fees was duly prepared, and the Chancellor confirmed it.  Thus Mr Gilbert was able to bury his wife as he wished, and the parish was compensated for the increased financial burden that this caused.

The scale of fees that was eventually approved included separate payments to the incumbent and churchwardens.  The Chancellor held that this was unobjectionable.  The relative of a deceased person ‘has no right … to quarrel with the public uses to which [the fee] has been applied by the parish’ (p.1351).

It seems reasonable to suppose that the right of burial should extend to the burial of cremated remains, since these are no less human remains than an uncremated dead body.  Cremation also avoids the practical difficulties that Sir William Scott identified with coffin burial. 

Yet in the case of Dixon (1892) Probate Division 386, Dr Tristram (one of Scott’s successors as Chancellor of London), doubted that the common law right of burial extended to cremated remains.  (He probably did not approve of cremation.)

However, the Miscellaneous Provisions Measure 1992, s.3(1) confirms that a person who has a right of burial in a churchyard has a right to the burial of his cremated remains.

Although Gilbert v Buzzard is usually cited in relation to the right of burial in the churchyard, it may also inform discussion about ecclesiastical fees.

The judgment suggests that the Chancellor viewed the burial fees as a species of local tax, a supplement or surcharge to the church rates, which was necessitated by the additional cost to the parish of coffin burial.  Thus the scale of fees was fixed by the vestry and confirmed by the ordinary in the same manner as church rates then were. 

Compulsory church rates were abolished in 1868.  Compulsory church fees, however, remain very much in force.

Gilbert v Buzzard suggests that burial fees were introduced for three particular reasons:

(1) a new mode of burial, in a coffin rather than merely in a shroud, that became popular in the late modern period

(2) coffin burial imposed an additional burden on the parish

(3) there was no legal right to burial in a coffin, only to burial of the remains.

Seen in this context, modern marriage fees may be rather hard to justify:

(1) the mode of church-marriage, unlike the mode of church-burial, has hardly changed since the middle ages

(2) modern church-marriage, therefore, does not impose any additional burden on the parish

(3) there is a legal right to church-marriage, as there is not to coffin burial.

In short, nothing has changed concerning the solemnisation of marriage so as to justify the introduction of a fee.  A marriage fee imposes a charge on a pre-existing legal right.

At common law, an incumbent was permitted to charge marriage fees only if they were payable by immemorial local custom and were not unreasonable.  The rubric in the Prayer Book marriage service provides, somewhat unromantically, that any customary marriage fee should be deposited on the officiating minister’s book during the ceremony, along with the ring.  But the incumbent still had to prove that a custom existed.

The case of Haigh v Aspull (1919) Probate 143 suggests that statutory marriage fees were first imposed in newly created parishes under the New Parishes Acts 1843 and 1856 (p.144).

St Mary’s Churchyard, White Waltham (No.2)

(2010) 3 Weekly Law Reports 160, Oxford Consistory Court, Bursell Ch

This case concerned the construction of a Sunday school building in the churchyard, a development to which certain parishioners objected.  It raises a number of issues concerning the exercise of the faculty jurisdiction.

Parochial feeling

The chancellor held that the parochial church council (PCC) ‘represents the body of the parishioners and, if any parishioner objects to [its] decisions … [he may] seek election to that body and … endeavour to overturn [a decision]’ (p.1566).  He concluded that he was ‘entitled to accept the views of the PCC as representing the … silent majority of the parishioners’.

This dictum draws attention to an important point.  The late 19th century faculty cases, which attached great importance to ‘parochial feeling’, were decided before PCCs were legally established.  It could therefore be argued that modern ecclesiastical courts should not attach the same importance as their Victorian predecessors to objections from parishioners to a proposed development, if that development is supported by the PCC.

This is a valid point but it should not be pressed too far.  Every PCC includes a significant number of unelected members, and it is chaired by the incumbent, not by a lay parishioner (Church Representation Rules 14 and 15).  A PCC may have been elected before the faculty was proposed, or before the implications of it were properly appreciated.  Many different factors may influence the election of a PCC, not just a particular faculty. 

Even if parochial opposition comes only from a minority, this may still justify refusal of a faculty on pastoral grounds.  The consistory court should also remember that its pastoral responsibility extends to all the parishioners, not just those on the parish electoral roll. 

‘Burden of proof’

The chancellor suggested that the civil standard of proof applies in faculty cases, and that it is for the petitioners to ‘prove’ their case according to this standard (pp.1566-7).  He cited Peek v Trower (1881) 7 Probate Division 21, at p.27, in support of this view.

However, the relevant passage of Peek v Trower says that

‘the burden is cast upon you [the petitioner] to shew that you will make things better than they are [already]’. 

The reference is to a ‘burden’, but not to a burden of proof.  In faculty cases the burden is one of persuasion rather than proof.  It is indeed for the petitioner to make the case for granting the faculty.  However, that case is likely to depend on the future, which is not capable of proof.

As Peek v Trower makes clear, a faculty is supposed to ‘make things better than they are’.  This is a reference to the future.  Yet only the past can be proved.  In a faculty case, there is unlikely to be much dispute over whether a past event actually happened or not.  If there is a dispute, the burden of proof should rest on the person alleging the event, regardless of whether they are the petitioner or an objector.

Faculties and Planning Permission

The chancellor suggested that there is a ‘comity’ between the consistory court and the local planning authority (LPA) (p.1575).  This suggestion does not sit comfortably with the consistory court’s supposed status as an impartial judicial tribunal.  The LPA is an executive authority, not a judicial one.  It would be a surprising suggestion that a ‘comity’ exists between an LPA and the High court or the local county court.

The chancellor admitted that he and his colleagues ‘do not find the relationship between the two jurisdictions [faculty and planning] an easy one’ (p.1575).  He observed that ecclesiastical courts are not ‘bound’ by planning decisions.  However, drawing on earlier unreported faculty decisions, he concluded that ecclesiastical courts should accept the factual conclusions of LPAs, unless there is some fairly obvious error.

It is argued that confusion between the ecclesiastical faculty jurisdiction and the secular planning jurisdiction will be avoided if the different purposes of the two jurisdictions are made clear.  The purpose of the faculty jurisdiction is the administration of the Christian religion (the divinely revealed Word and Sacraments) in the parish, whereas the LPA is concerned with secular environmental matters.

If this radical difference of purpose is borne in mind, it should become clear that there is very little connection between the two jurisdictions.  The chancellor correctly observed that it is ‘[doubtful] how relevant [planning] matters are … which do not directly impinge upon the church or churchyard’.

The consistory court is not required either to ‘accept’ or ‘reject’ planning decisions.  A planning decision is simply a fact.  It is not for the consistory court to say that the decision is right or wrong.  That is for the secular authorities to decide (by way of appeal or judicial review). 

Thus, if the LPA grants planning permission for a particular development that is also relevant to a faculty application, the consistory court should not ‘go behind’ the LPA’s factual conclusions at the behest of disappointed objectors. 

Any faculty must, of course, be within the law, including planning law.  A faculty cannot permit something that is, or would be, illegal.  Subject to this, however, it is argued that the consistory court has no direct responsibility for the ‘environment’ (except where statute law expressly imposes such a responsibility).  Care of the environment is the responsibility of the secular authorities. 

The consistory court does not own the church and churchyard.  The incumbent or lay rector is the freeholder.  The care of the property is the legal responsibility of the PCC (PCC (Powers) Measure 1956, s.4(1)(iii)).  The consistory court’s ‘care’ is religious, not environmental.  It is to protect and advance the unique use or purposes for which the church and churchyard exist.

Faculties and Finance

Major building work will, of course, be very expensive, and churches tend to be chronically short of money, relying as they do on voluntary donations by individuals.  How deeply should the consistory court inquire into the ability of a parish to pay for a particular work?

The chancellor suggested that the need (or rather, the ‘necessity’) for the work should be considered separately from its cost (p.1586).  This suggests that a structured approach is appropriate in faculty cases: need / necessity first, then cost.

As with the care of parish land and buildings, the PCC has the legal responsibility for parish finances and fundraising, not the consistory court (1956 Measure, ss.7 and 8).  The chancellor held that the financing of a development is for the PCC to decide.  The court should refuse a faculty on cost grounds only if the proposed expenditure was ‘improper or wholly unrealistic’.

This suggests that the question of cost will not receive the same degree of judicial scrutiny as the question of need / necessity.  A faculty that is considered ‘necessary’ will be declined on grounds of cost only if the proposals for financing it are perversely unreasonable.

The Care of Churches and Ecclesiastical Jurisdiction Measure 1991 clearly envisages that a faculty for building development is likely to be subject to the continuing supervision of the archdeacon or of some other person appointed by the court (s.12(1)).  However, the 1991 Measure refers to the ‘work’, which word suggests the actual building process rather than the finance.

The Mayflower Log

(1897) Probate 208

This seems to be the only reported case concerning ecclesiastical records.

The consistory court of London ordered that a Log recording the peregrinations of the pilgrim fathers be delivered from the London diocesan registry to the perpetual custody of the Governor of Massachusetts, USA.

The order was concerned only with custody, not ownership.  It was not known how the Log had come into the diocesan registry’s possession in the first place (pp.213-14).  Nor was it suggested that the Governor of Massachusetts was the rightful owner of the Log.  The reason for the order was simply recognition that the Log was ‘of the greatest importance and value to … the USA as one of the earliest records of their national history’ (p.209).

The order was made by analogy with the statutory procedure for transferring diocesan records on a reorganisation.  The equivalent statutory provision to that referred to in the case is now found in the Dioceses, Pastoral and Mission Measure 2007, schedule 2 (15). 

Before 1776 the American colonies were under the ecclesiastical jurisdiction of the Bishop of London.  After independence, they ceased to be subject to this jurisdiction.  The Log obviously related to the former colonies.  It was therefore appropriate to transfer the Log, just as if the former colonies had been transferred from one diocese to another when they became independent.

Thus the USA was treated for the purposes of the case as if it was a new diocese, carved out of the diocese of London.  The Log, being a record pertaining to the new ‘diocese’, should be transferred to it.

Despite the analogy, the order to transfer the Log was made on the court’s own common law authority, not any statutory authority.  

The Parochial Registers and Records Measure 1978 defines ‘records’ as ‘materials in written or other form setting out facts or events or otherwise recording information, other than register books’ (s.25(1).

The Mayflower Log was, of course, decided a long time before the 1978 Measure, and the Log was not a parochial record.  It is unlikely that an outright transfer of a parochial record to another country would be permissible under the 1978 Measure. 

S.17 permits a parochial record to be transferred from the diocesan record office to a ‘suitable and safe place’, for the purposes of ‘exhibition or research’.  No territorial limit is imposed, but deposit is only allowed for up to one year, though s.18 suggests that a one year temporary deposit might be renewed annually ad infinitum

The decision to allow the transfer of a parochial record under s.17 is taken by the chief officer of the diocesan record office, not by the ecclesiastical court.  The consent of the relevant parochial church council is also required.