Freelancing and Fees: The Long Arm of the Ecclesiastical Law
by Philip Jones
Rouch v Hawthorne (2015) Winchester Disciplinary Tribunal, Chancellor Bursell QC presiding
The erudite and informative blog Law and Religion UK (to which this blog has been much indebted over the last three years) has drawn attention to a minor controversy in the Church of England concerning fees charged by clergy for officiating at funeral services in crematoria.
The Rev Dr Hawthorne was the non-stipendiary assistant curate of a parish (therefore not an incumbent). The Disciplinary Tribunal found him guilty of dishonesty concerning such fees, over quite a long period. Dr Hawthorne later crowned this career of errors by turning papist. He left the Church of England to join the Anglican Ordinariate (though, of course, it goes without saying that this had not the slightest influence whatsoever on the Tribunal’s condemnation of him).
Even though he had already left the Church of England, the Tribunal found it necessary to prohibit Dr Hawthorne from exercising the ordained ministry therein, for the rest of his natural life.
The Law and Religion blog relates (16th March 2015) that Dr Hawthorne’s case has caused ‘a degree of concern’ among other clergy who routinely officiate at crematorium funerals – as well it might. Guidance issued by the Church of England’s Legal Office in the wake of the case warned menacingly that ‘Unless the diocesan board of finance has expressly agreed … it is not lawful for a member of the clergy to retain any fee … To do so in the absence of agreement with the board would amount to the appropriation of property belonging to another for the purposes of the Theft Act 1968’ (‘Crematorium Funerals and Parochial Fees’, January 2015, para 6).
As mentioned, Dr Hawthorne was an assistant curate, attached to a particular parish. However, the case against him was principally concerned with his activity at a crematorium outside the parish. It seems that he had been freelancing there, taking the funerals of people who had no connection with his own parish. He had officiated at 227 cremations and received about £23,000 in fees.
The case against Dr Hawthorne was that he had ‘dishonestly retained fees payable under the Parochial Fees Orders for services at which he has officiated’ (para 18). Two observations may be made on this complaint:
(1) It does not refer to funerals per se, only to funeral fees. The Church authorities did not apparently object to Dr Hawthorne officiating at the crematorium. Indeed the Tribunal’s decision indicates a striking lack of curiosity about how Dr Hawthorne came to take so many funerals outside his own parish. (Did he advertise through funeral directors, the crematorium management, other clergy, or was he just approached by them? No explanation is given.)
Canon C8(4) lays down a general rule against freelancing or ‘poaching’ by clergy on the cure of souls of other clergy:
‘No minister who has … authority to exercise his ministry in any diocese shall do so therein in any place in which he has not the cure of souls without the permission of the minister having such cure …’.
S.2 of the Miscellaneous Provisions Measure 1992 permits clergy to officiate at crematoria without requiring the permission of the incumbent in whose parish the crematorium happens to be situated. However, s.2 only permits clergy to officiate at the cremations of their own parishioners.
Thus, for ecclesiastical purposes, a crematorium is treated as if it was part of the deceased person’s parish, and therefore within the cure of souls of that person’s incumbent. If the first cremation of the day is of a parishioner from Barchester, the crematorium is treated as if it were part of the parish of Barchester. If the next cremation is of a parishioner from Crampton Hodnet, the crematorium is then treated as part of the parish of Crampton Hodnet. And so on.
Therefore if a clergyman officiates at the cremation of a non-parishioner without the incumbent’s permission, he will be guilty of ‘[an] act in contravention of the laws ecclesiastical’, contrary to the Clergy Discipline Measure 2003, s.8(1) . However, Dr Hawthorne was not charged with this offence. Nor did the Tribunal expressly find that he had officiated without permission. Indeed, it seemed to accept that the bishop knew about the crematorium funerals (cf. para 37).
(2) The complaint was only that Dr Hawthorne retained fees, not that he demanded or received the fees in the first place. Yet the parochial fees legislation in force at the time is very clear that funeral fees are payable only to an incumbent. Dr Hawthorne was an assistant curate, not an incumbent. Therefore he could have had no right to be paid any fees. So why was he not charged with demanding or receiving the fees, only with retaining them?
The answer seems to be that it is common practice for non-incumbent clergy to receive fees, notwithstanding the provisions of the parochial fees legislation. The Church does not seem to object to non-incumbents taking fees paying them into their personal bank accounts etc, just so long as they account for them to the rightful owners later on.
This is arguably a rather dangerous practice. A non-incumbent clergyman who accepts a fee is prima facie in breach of the parochial fees legislation, even if this is common practice, and is therefore vulnerable. Any confusion or forgetfulness may give rise to a nasty disciplinary complaint, and accusations of dishonesty. On the other hand, if a non-incumbent clergyman refuses to handle a fee, and the fee is then not paid to the Church at all, he may get into trouble for ‘neglect and inefficiency in the performance of the duties of his office’ (2003 Measure, s.8(1)), depriving the Church of fee income. No wonder some clergy are anxious.
It may be that the parochial fees legislation requires further amendment. At present, it is concerned only with the imposition of fees. It provides no procedure for collecting them. Moreover, it is argued that the policy underlying the legislation is incoherent. What are parochial fees for? Obviously to provide a source of income for the Church. However, incumbents should not be paid fees for officiating at the weddings and funerals of their own parishioners, since this is what they are paid to do anyway. If they are paid fees on top of stipend, they are effectively being paid twice for the same work.
By contrast, non-stipendiary clergy (like Dr Hawthorne) and retired clergy have a just claim to payment of any statutory fees, since weddings and funerals are not part of their paid duty. There will also be little incentive to do such work, if they receive no remuneration for doing it.
The Ecclesiastical Fees (Amendment) Measure 2011 partly addressed this anomaly, by providing that fees should in future payable to the diocesan board of finance (which now pays all stipends), and not to incumbents. But this does not resolve the difficulties revealed by Rouch v Hawthorne.
However, the Tribunal which decided Rouch v Hawthorne was evidently unmoved by the difficulties. It found Dr Hawthorne guilty, not merely of unbecoming and inappropriate conduct, but of dishonesty. It effectively called him a thief. Such an accusation must be a dreadful experience for any person of good character, let alone a clergyman. Theft is, of course, contrary to the Eighth Commandment. It was the accusation made against Judas Iscariot in the Gospel. (Perhaps joining the Ordinariate is regarded as an act of betrayal in the Church of England!) And it is a serious crime in secular law.
It is argued that the Tribunal should have been guided by the famous case of Neary v Dean of Westminster (1998). The Choirmaster of Westminster Abbey was dismissed for making secret profits, over a number of years, derived from his management of the Abbey choir (fees for arranging concerts, recordings etc), and not accounting for these to the Abbey authorities. The Special Commissioner (a retired law lord) ruled that the dismissal was justified. However, he made clear that the Choirmaster’s misconduct amounted to impropriety only, and not dishonesty.
If Dr Hawthorne received funeral fees on a regular, ongoing basis without accounting for them, then he was guilty of an impropriety which could arguably justify a verdict of inappropriate conduct under the Clergy Discipline Measure. However, he did work for those fees. He turned up at the crematorium, took the funeral services, comforted the bereaved relatives. He had a legitimate expectation of payment, even though no legal right. Yet by condemning him as dishonest, the Tribunal treated him exactly the same as if he had fraudulently claimed fees for funerals that he never took.
The Tribunal justified its continued pursuit of Dr Hawthorne, notwithstanding that he had left the Church of England, on the ground that he had not executed a deed of relinquishment under the Clerical Disabilities Act 1870, and so remained subject to ecclesiastical discipline. This view was trenchantly supported by the Legal Office, which asserted (perhaps with a beady eye on other clergy who might be tempted across the Tiber) that ‘only where a deed [of relinquishment] is executed and enrolled … and subsequently recorded by the bishop is the person concerned freed from the legal constraints and obligations that apply to clerks in holy orders’ (para 10).
Yet this is not really accurate. S.8 of the 1870 Act, which is headed ‘saving for pecuniary liabilities’, provides that ‘Nothing in this Act shall relieve any person or his estate from any liability in respect of … any debt or other pecuniary liability incurred or accrued before or after his execution of a deed of relinquishment … and the same [debt / liability] may be enforced and recovered as if this Act had not been passed’.
If the Church authorities really believed that Dr Hawthorne had swindled them, and deprived them of income which rightfully belonged to them, they could have taken action against him in the secular court, even if he had executed a deed of relinquishment (and even if he had died). The ecclesiastical tribunal was not in a position to ‘discipline’ Dr Hawthorne in any meaningful sense, since he had already ceased to belong to the Church of England. However, as this vindictive proceeding makes clear, even though clergy may leave the Church of England for the Ordinariate, they still leave their characters behind them.