The Parish and the Privy Council

by Philip Jones

‘Miss Spencer – Their Lordships have listened with attention to what you have had to say in opposition to the [pastoral] Scheme, and assure you that they respect the sincerity of your views.  You have taken a great deal of trouble over this matter, over a long period.  Their Lordships have read the Answer which has been made, and the affidavits of Mr Morton, Canon Marlow and of the Bishop, and all the papers which have been filed with them.

The Scheme which has been put forward must, in the opinion of Their Lordships, be allowed to go forward.’

Spencer v Church Commissioners (1970), Privy Council 33.  The complete Judgment.

Not all judgments on pastoral appeals are as succinct as this one, but they are usually to the same effect.  The large majority of such appeals have failed in the past.  A few have succeeded, however.

In Westoe and South Shields, St Hilda (1939) Appeal Cases 269, the impugned scheme provided for the amalgamation of 2 neighbouring benefices, and the closure of 1 of the parish churches.  This would provide funds with which to endow a new church elsewhere in the diocese.  The Commissioners candidly admitted that ‘no benefit of any kind would accrue to the 2 parishes [affected]’ (p.275).

Church attendance in the 2 parishes was steady.  1 parish was High Church, the other Low Church.  There were no other churches at a convenient distance.

Emmanuel Church and All Saints, Clifton (1959) 17 and (1961) 14 likewise concerned the amalgamation of 2 benefices.  As in the previous case, 1 parish was High Church and the other Low Church.  Both parishes ‘maintain[ed] themselves without outside financial aid’.  The parish church of 1 benefice had been destroyed in a wartime air-raid, so ‘a large sum is expected to be obtained from the War Damage Commission in respect thereof’, i.e to build a new parish church.

The Church Commissioners had other ideas, however: ‘this sum should not be used for rebuilding [the church] on its original site, or elsewhere in the parish, but in building a church or churches in other parts of the diocese [which] require the provision of new churches’.

The injustice of both these schemes is obvious.  Perfectly viable parishes would be asset-stripped, and their worship gravely disrupted, all for the sake of diocesan policies and plans which would bring them no benefit.  The schemes effectively ignored the interests of the parishes.  They were quashed.

In Hummerston (1973) 23, a scheme to amalgamate 2 parishes provided that 1 of the parish churches should be demoted to a mere chapel of ease.  The amalgamation itself was accepted, but the demotion of the parish church was refused.  There was no reason for it – a single parish can have more than 1 parish church – and it had not been part of the original reorganisation proposal.

In Pim  (1975) 10, the scheme provided for the division of a single parish, because of the proposed construction of a huge 6-lane motorway (though described as a ‘quasi-motorway’) that would run right through the middle of the parish, and make it difficult for parishioners on the far side of the motorway to attend church.  That part of the parish would therefore be transferred to another parish on the same side of the motorway.

A reasonable provision, perhaps – except that the motorway proposal had been abandoned the previous year.  The Commissioners persisted with the scheme, even though the reason for it had fallen away.

The Privy Council suggested that the Commissioners had a bad attitude problem: ‘the impression [is] that they were determined to put the scheme through’, and merely went through the motions of consultation.  They ‘rest[ed] too easily upon a presumption in favour of the validity of schemes’.

Rogers (1980) 3 concerned the redundancy of a chapel of ease.  The chapel was ‘undoubtedly required’ by the parishioners.  But alas, it was sorely in need of repair, and had no money to pay for this.

Another apparently reasonable scheme.  However, the Privy Council found that ‘both the urgency and the cost of repairs had … been exaggerated’.  Moreover, the chapel ‘will not lack the funds necessary for existing’.  The Privy Council concluded that ‘Their Lordships do not believe that the dilemma posed by the [Church Commissioners] in reality exists’.

In Cheesman (1999) 12, it was alleged that the scheme had been made with the ulterior motive of marginalising an unpopular incumbent – the Reverend Mr Cheesman – whom the Church had failed to get rid of by other means.

Cheesman’s conviction for indecency in a public lavatory had been quashed on a legal technicality (the indecency had only been witnessed by the police, not the public).  He had been prosecuted under the Ecclesiastical Jurisdiction Measure 1963, and also made the subject of a pastoral inquiry under the Vacation of Benefices Measure 1977.  However, both ecclesiastical proceedings were subsequently abandoned, leaving him in continued possession of his benefice.  Then diocesan discussions began about significantly reducing the area of the benefice, transferring most of it to other parishes and clergy, and leaving Cheesman with a cure of just 354 souls.

The Privy Council agreed that ‘if the sole purpose of … the scheme was the vacation of a benefice because of objections to the incumbent, the scheme could not be upheld’.  And Cheesman succeeded in persuading 1 of the judges that ‘the original purpose of the scheme was to separate [Cheesman] from those of his parishioners who opposed him’.

The majority of judges disagreed, however, and accepted the Commissioners’ stated reason for the scheme, which was the geographical and sociological condition of the benefice.  They also held that, though the reorganisation procedure should not be used as a substitute for more appropriate proceedings, Reverend Cheesman’s unhappy position was still a relevant factor:

‘To exclude all consideration of the contribution to the successful cure of souls … that the incumbent … could make would be to adopt an artificiality which finds no support in the [Pastoral Measure], and would obstruct its purpose.’ 

Thus it was not wrong to consider the parishioners’ opposition to Cheesman when preparing the scheme.  Cheesman’s appeal was therefore dismissed by a majority.

Lord Scarman asserted in Hargreaves (1983) 3 All England Reports 17 that the Privy Council’s function is ‘a genuine appeal process … not to be compared with judicial review … notwithstanding certain superficial similarities’ (p.20).  However, our narrative suggests that, contrary to this view, a pastoral appeal is indeed, in substance, a judicial review. 

The schemes discussed above were impugned for

(1) illegality – non-compliance with the statutory requirement to ‘have regard to … the traditions, needs and characteristics of particular parishes’ (Westoe and Clifton): cf Mission and Pastoral Measure 2011, s.3(2) – the precise wording has varied in previous Measures.

(2) irrationality – no reason at all (Hummerston), a false reason (Rogers), or a reason that had ceased to apply (Pim).

(3) impropriety – ulterior motive, abuse of the procedure (the minority view in Cheesman).

The Privy Council is, of course, a secular tribunal, whose intervention in ecclesiastical matters was much resented in the past.  It is therefore not remotely qualified to ‘make or assist in making better provision for the cure of souls’, which is the whole object of pastoral reorganisation (cf 2011 Measure, s.3(3)(a)).  It will be unfamiliar with the diocese and parishes affected by a scheme.  For these reasons it will inevitably defer to the Church authorities.

Lord Diplock acknowledged that ‘The [diocesan authorities] and the Church Commissioners are all in a much better position than [the Privy Council] to know the particular circumstances of the parish and of the diocese as a whole’ (Elphick (1974) Appeal Cases 562 at p.566).  In Little Leigh (1960) 1 Weekly Law Reports 567-8, the Privy Council held that it should be ‘slow to dissent, save for the most cogent reasons, from recommendations embodied in a scheme regularly brought into existence’.

Lord Scarman himself admitted that ‘If there is room for 2 reasonable opinions, the fact that the Church authorities have adopted 1 will almost always be decisive against the other’ (Hargreaves, p.21).  (He also dismissed Captain Hargreaves’ appeal against the scheme.)

It is therefore argued that the true pastoral function of the Privy Council is to protect parishioners and clergy from misuse of the reorganisation procedure by the Church authorities.

The pastoral appeal seems to have originated in the Union of Benefices Act 1860.  This applied only to London.  S.16 provided that ‘Any person interested who may have shown cause to the … Commissioners against the proposed union … may appeal to Her Majesty in Council … and Her Majesty in Council may order and direct that such objections shall be considered by the Judicial Committee of the Privy Council …’.

Until recently, all pastoral schemes had to be confirmed by Order-in-Council, i.e by an order of the Privy Council.  It may therefore have made sense that the same body should hear objections to a scheme before confirming it.

However, the requirement of a confirmatory Order-in-Council was abolished by the Dioceses, Pastoral and Mission Measure 2007, s.30.  Pastoral schemes are now authorised only by the Church Commissioners, when they make the scheme (2011 Measure, s.11).  Yet the appeal to the Privy Council has survived.  It is now regulated by s.12 and Schedule 2 of the 2011 Measure.

Ironically, schemes of diocesan reorganisation (for the creation or merger of dioceses etc) still do require an Order-in-Council, but there is no appeal against such schemes to the Privy Council (2007 Measure, s.8).

Appeals now require the prior permission, or leave, of the Privy Council (2011 Measure, s.12(1)).  This is a standard requirement for both appeals and judicial review.  It means that hopeless cases – like that of poor Miss Spencer – can no longer proceed to a full hearing.

The Privy Council may only hear appeals against pastoral schemes made by the Commissioners.  Minor reorganisation can be effected by a pastoral order, which is made by the bishop (2011 Measure, s.11(7) and s.51).  No appeal lies against a pastoral order.

Cheesman, which was decided in 1999, seems to have been the last decided pastoral appeal (whether successful or unsuccessful) for a quarter of a century.  This may be a tribute to the quality of the reorganisation procedure.  However, the Privy Council is presently (in 2024) considering an appeal concerning the parish of All Saints, Spring Park, in the diocese of Southwark.