Ecclesiastical Law and Disestablishment
by Philip Jones
The Welsh Church Act 1914, which provided for the disestablishment of the Church in Wales, was discussed by the House of Lords in the case of Representative Body of the Church in Wales v Tithe Redemption Commission (1944) 1 All England Reports 710, in which they overruled the decision of the Court of Appeal in Tithe Redemption Commissioners v Commissioners of Church Temporalities (1943) 1 All England Reports 605.
Interestingly, the law lords who decided the Tithe Redemption case were headed by the then Lord Chancellor, Viscount Simon, who, as the Liberal Attorney-General Sir John Simon, had successfully promoted the bill which became the Welsh Church Act.
The Tithe Redemption case prompted Lord Denning to formulate his famous thesis on the division of ecclesiastical law into ‘general’ and ‘technical’ law in an article ‘The Meaning of Ecclesiastical Law’ (1944) Law Quarterly Review, vol 60, p.235. This article has been discussed elsewhere. Lord Denning defined ‘technical’ ecclesiastical law as ‘the law administered by ecclesiastical courts and persons’ (p.236), though his analysis concentrated rather more on the courts than the persons.
As Lord Denning noted, the Welsh Church Act does not contain any definition of ecclesiastical law. Nor did the Irish Church Act 1869, which effected the disestablishment of the Church of Ireland and provided the model for the Welsh Church Act.
Despite the lack of a definition, Lord Denning argued that the structure of the Welsh Church Act supported his suggested distinction between technical and general ecclesiastical law. He noted that the Act makes specific provision for certain matters ‘which would fall within ecclesiastical law in a general sense … such as rights of patronage, vesting of Church property and so forth’ (p.236). Where specific provision is lacking, any ‘ecclesiastical law’ referred to in the Act must be restricted to that administered by ecclesiastical courts and persons.
S.3 of the 1914 Act refers to ecclesiastical law in the following terms:
‘ecclesiastical courts and persons … shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1))
‘ecclesiastical law shall include … such law so far as it is embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892 or the Ecclesiastical Dilapidations Acts 1871-2, or any other Act of Parliament’ (s.3(4))
S.38(1) of the Act defines ‘ecclesiastical person’ as ‘the holder of any ecclesiastical office who is in holy orders’.
It must be acknowledged that s.3, considered in isolation, does tend to support Lord Denning’s analysis. It seems to identify ecclesiastical law with clergy and Church courts. The Acts of Parliament referred to in s.3(4), which have now all been repealed, regulated the functions of the clergy.
However, it is argued s.3 has to be understood in the context of the Welsh Church Act as a whole. The long title of the Act makes clear that the purpose of the Act was
 ‘to terminate the establishment of the Church in Wales … and
 ‘to make provision in respect of the Temporalities thereof and …
 ‘other purposes in connection with [1 and 2]’.
S.1 of the Act provides that ‘the Church in Wales … shall cease to be established by law’. ‘Established by law’ means ‘constituted by law’. ‘Temporalities’ refers to property and property rights.
The Welsh Church Act therefore had a twofold purpose
(1) to reconstitute the Church in Wales on a voluntary basis and
(2) to dispose of its property.
The references to ‘ecclesiastical law’ in s.3 of the 1914 Act should therefore be understood in the context of the Church’s establishment. The ‘establishment’ of the Church is its constitutional structure, its organisation. The law of the Church regulates its function. The function of the Church in Wales, as of any Church, is the administration of the Christian religion. Ecclesiastical law regulates the administration of the Christian religion.
Thus the 1914 Act reconstituted both the Church’s
(1) structure / organisation and
(2) its function
on a voluntary basis. Henceforward the members of the Church in Wales would decide its organisation and function on the basis of rules agreed between themselves, though subject to the secular law.
Thus the 1914 Act made a distinction between the Church’s religion and its property, not between its ‘general’ and ‘technical’ law. It is rather absurd to divide the administration of the Christian religion into ‘general’ and ‘technical’ aspects.
It may indeed be difficult, even impossible, to define the exact boundaries of ecclesiastical law. Where does the administration of religion end and secular governance begin?
The House of Lords specifically declined to answer this question in the Tithe Redemption case. ‘It is not … necessary to pronounce finally on these niceties’ (Viscount Simon, p. 713). ‘I am not clear as to the precise effect of the very general words of s.3’ (Lord Wright, p.717). ‘I do not desire to dogmatise as to the effect of s.3’ (Lord Porter, p.718). ‘I do not think it necessary to determine the exact scope of that ‘ecclesiastical law’ … which by s.3 … is to cease to exist as law’ (Lord Simonds, p.720).
The scope of ecclesiastical governance was sharply reduced in the mid-19th century, before the Irish Church Act and the Welsh Church Act were passed. By 1914 it was almost exclusively liturgical, restricted to activity within the church and churchyard. However, ecclesiastical governance continued to engage rights of property. (It still does, of course.) The function of the 1914 Act was therefore to regulate the future relationship between ecclesiastical governance and property.
As its name implies the Tithe Redemption case was concerned with tithes (or tithe rentcharge, which was derived from tithes). Tithes were connected to the administration of religion, hence to ecclesiastical governance, because they were used to pay for the maintenance of the Church. A tithe owner was liable at common law to repair the chancel of the parish church.
But, as Lord Wright noted, tithe or tithe rentcharge is ‘an incorporeal hereditament … a well-known type of real property’ (p.717). Ownership of tithe rentcharge and the liability to pay it are questions of property law, rather than ecclesiastical law.
The Welsh Church Act provided, at s.8, that tithe rentcharge in ecclesiastical ownership should in effect be secularised. Ownership was to be transferred from the Church to the Welsh local authorities and to the University of Wales.
However, s.28(1) provided that
‘Nothing in this Act shall affect … the liability of any lay impropriator of any tithe rentcharge to repair any ecclesiastical building [i.e the chancel], but a [local authority] shall not … be liable for the repair of any ecclesiastical building’.
Thus s.28(1) expressly exempted the local authority tithe rentcharge from the liability to repair the chancel. However, no such exemption was granted to the University, or to any other lay owner (‘impropriator’) of tithe rentcharge.
The Court of Appeal reasoned that chancel repair was a duty imposed by ecclesiastical law, and hence was governed by s.3 of the 1914 Act. This meant that the duty had ceased to be a legal duty where the tithe rentcharge was in ecclesiastical ownership, because ecclesiastical law had ceased to exist as law after Disestablishment.
The University had inherited tithe rentcharge that was formerly in ecclesiastical ownership, at Disestablishment. It could not therefore be liable for chancel repair. The legal duty to repair the chancel could only attach to tithe rentcharge that had been in lay ownership before Disestablishment.
The House of Lords disagreed with this analysis. It held that the question of chancel repair liability was governed by s.28(1), not by s.3. The University was a ‘lay impropriator’ within the meaning of s.28(1), and therefore liable for chancel repair. The exemption granted to local authorities did not extend to the University. If chancel repair had ceased to be a legal duty after Disestablishment, the exemption in s.28(1) would not have been necessary.
Tithe rentcharge was actually abolished, or ‘extinguished’, by the Tithe Act 1936, passed over 20 years after the Welsh Church Act. In consequence, the liability of owners of tithe rentcharge for chancel repair was also abolished. The 1936 Act provided for a system of compensation. Former lay owners of tithe rentcharge received compensation for the loss of their ‘incorporeal hereditament’. However, the Church also received compensation, because it had lost a legally enforceable right to the repair of its chancels.
Thus the practical effect of the decision in the Tithe Redemption case was that the Church in Wales, through its Representative Body, received compensation under the Tithe Act 1936, because it had lost the legal right to require the University of Wales to repair some of its chancels.