A Decade of the Faculty Jurisdiction

by Philip Jones

One of the reasons for starting this blog 10 years ago was to address 2 confusions concerning the faculty jurisdiction:

(1) exaggerated reverence for the sanctity of ecclesiastical property and

(2) failure to appreciate that the faculty jurisdiction, though exercised by judges and courts, is actually an executive or administrative function, not a judicial one.

(1) originated in a misunderstanding of the legal effect of consecration upon land (see ‘Consecrated Land: Status and Use’, filed under category ‘Consecration’). It was encouraged by a fear of losing the precious exemption from secular listed building control. It resulted in the rule that changes to a listed church should be permitted only on grounds of necessity (see ‘The Necessity of the Ecclesiastical Exemption’, filed under ‘Faculties’). This test of ‘necessity’ was actually stricter than that required for secular listed building consent.

(2) arose from confusing the ecclesiastical offices of chancellor and vicar-general, which are generally held by the same person. Judicial functions (now virtually all abolished) are exercised by the chancellor. The vicar-general, as his title implies, exercises administrative functions, including the faculty jurisdiction, as the deputy or representative of the bishop (see ‘The Chancellor, the Official-Principal and the Vicar-General’, filed under ‘Ecclesiastical Jurisdiction’).

A few months after this blog started, in the case of St. Alkmund, Duffield (2012), the Court of the Arches abandoned the exaggerated test of ‘necessity’. Nothing to do with this blog, of course. It was all due to the persuasive powers of Mr Alexander McGregor, barrister and amicus curiae in the case, who, ‘unprompted by any member of this Court … invited the Court to … revisit [the necessity test]’ (para 82).

The Court briefly alluded to the powerful criticisms of the test made by 2 very senior judges of the Court of Ecclesiastical Causes Reserved in St. Stephen Wallbrook (1987) 2 All England Reports 578, but did not explain why it had waited a quarter of a century to address these.

As a result of Duffield, dealings with listed churches now require a balance to be struck between

(1) their impact on the building (pejoratively described as ‘harm’ to the building) and

(2) the benefit that will accrue therefrom

Thus ‘the more serious the harm, the greater will be the … benefit needed to justify a faculty’ (87).

This new, and more realistic, balancing exercise is similar to the original test formulated by Lord Penzance, Dean of the Arches, in Peek v Trower (1881) 7 Probate Division 21: ‘the burden is cast upon [the petitioner] to shew that [the proposed dealing] will make things better than they are’ (p.27), though laying greater emphasis on the claims of conservation.

Duffield was concerned with buildings, not movable chattels. St Lawrence Wootton (2014) concerned the sale, to a private buyer, of an armet, ‘a type of helmet, worn by knights and men-at-arms during the 15th and 16th centuries’ (1), (therefore not an item particular to a church).

The Court of the Arches refused a faculty. The only reason given for the sale was to raise money. That might be a good enough reason if there was a financial emergency, but the parish was actually quite prosperous. Absent emergency, fundraising alone was not a sufficient justification for the sale.

The Court made valid observations about the importance of conserving heritage, and the need to treat parochial pleas of poverty and expense with a degree of caution. However, the decision was hardly satisfactory. The armet had been removed from the church as long as 40 years ago, for security reasons, and deposited in a museum. There was no possibility of it ever returning to the church. It was not even on public display in the museum, but locked away in a storeroom (albeit ‘viewable by arrangement’ (2)).

If we apply the Duffield test to this case, it is hard to see how the sale of the armet could possibly have caused any harm, whether to the armet itself, to the church, or to national or local heritage. And sale would have yielded a benefit, in the form of a sum of money which could have been put to good ecclesiastical use. As the Court itself observed, refusing a faculty was effectively penalising the parish for ‘the commendable strength of their financial position’ (93).

The decision in St Lawrence Wootton has unfortunate echoes of St John’s, Chelsea (1962) 2 All England Reports 850, when a lucrative commercial development of land that had been vacant for 2 decades was refused, even though there was no hope of restoring it to ecclesiastical use, just because the land had once been consecrated.

The Duffield guidance has clarified the relationship between the faculty jurisdiction and property. What has been done over the last decade to clarify the difference between administrative and judicial function (confusion (2) above)?

Chancellor Bursell unfortunately succeeded in exacerbating confusion with a flawed thesis on ‘precedent’, which failed to appreciate the fundamental distinction between binding precedent and mere guidance. (See ‘Alsager v Blagdon: Binding and Guiding’, and ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed under ‘Faculties’). This caused an unnecessary addition to the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, at s.14A.

There are at least 3 practical differences between the judicial function and the faculty jurisdiction, which should inform the conduct of faculty proceedings:

(1) the judicial function is the determination, or vindication, of rights. A faculty, by contrast, is a permission to do something to which there is no right.

(2) judicial proceedings are almost always contested. Faculty proceedings are almost always unopposed.

(3) the judicial function (i.e trying a claim of injustice) is generally concerned with the past, which must be proved by evidence. The faculty jurisdiction is concerned with the future, ‘making things better than they are’ as Lord Penzance put it, but the future is incapable of proof. (See ‘St Mary’s Churchyard, White Waltham’, filed under ‘Faculties’.)

These differences arguably demand a different practical approach to faculties:

(1) a more pro-active, even inquisitorial, investigation by the decision-taker, as there will be no party opponent to draw attention to omitted evidence, or cross-examine witnesses. But also

(2) an emphasis on substance rather than form. Nobody is on trial, and nobody’s rights are at stake. All relevant facts must be found, and parishioners and other interested parties properly informed, and given opportunity to make representations. However, this should not require an elaborate procedure.

A lecture entitled ‘Do we still need the Faculty System?’ (Ecclesiastical Law Journal, September 2020), by the late Dean of the Arches and Auditor, Charles George QC, did much to clarify confusion (2). (Though, like the Duffield guidance, this has been a long time coming.) The deliberate choice of the word ‘system‘, rather than ‘jurisdiction’, acknowledges the administrative character of faculty proceedings. The lecture also drew attention to some interesting points:

(1) the latest edition of the faculty rules, which Dean George promoted, refers to ‘the chancellor’ rather than ‘the court’ (though ‘vicar-general’ would have been an even better reference, for the reasons stated earlier)

(2) ‘the members of the Court of Arches have never, during my term of office, worn robes or wigs (what is good enough for the Supreme Court is good enough for us)’ [!]. Wigs and gowns are, of course, outward and visible signs of the judicial function.

(3) the faculty jurisdiction / system over cathedrals is exercised by committees, not courts (see the preceding blogpost). Dean George suggested that the diocesan jurisdiction could be exercised likewise, by the diocesan advisory committee rather than the chancellor.

A powerful suggestion, to which we would have assented at the time it was originally made. But perhaps the experience of recent years should give us pause. The armet in St Lawrence Wootton would presumably now be denounced as ‘colonialist’ (if, of course, the denouncers were made aware of what an armet actually is). The conservatism and self-importance of ecclesiastical courts and judges – wigs and all – are easily mocked. But they may foster one very precious quality – independence: a refusal to be carried along by the fads and fashions of the present moment, or to be hustled by powerful and articulate interest groups. Diocesan and cathedral committees are less formal and pretentious, but may they also be less resistant to political pressure?

The faculty jurisdiction now faces a new and greater test of necessity – of the protection of ecclesiastical heritage from abuse, which is its constitutional function. The recent decision of an ecclesiastical judge in the well known case of Jesus College, Cambridge offers a small hope.