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Ecclesiastical law

Category: Faculties

Alsager v Blagdon: Binding and Guiding

Christ Church, Alsager (1998) 3 Weekly Law Reports 1394

Blagdon Cemetery (2002) 4 All England Reports 482

Both the cases cited above concerned requests for exhumation of deceased persons by their relatives.  In Alsager, the Chancery Court (which is the provincial court of York) observed that

‘applications for exhumation are common … [but] there is no reported relevant case in either this Court or the Court of Arches’ (p.1399).

It therefore took the opportunity to issue guidance to consistory courts on how to decide exhumation cases in future.

A few years later, in Blagdon, the Court of the Arches (the provincial court of Canterbury) issued its own guidance on private exhumation, because it found the Alsager guidance unsatisfactory.

The Worshipful Chancellor Bursell QC was one of 3 judges of the Chancery Court which decided Alsager.  Despite the passage of time, he has evidently not forgiven the Court of the Arches for rejecting the guidance of which he was a co-author.  He took his revenge in the case of Sam Tai Chan (2016), in which he officiated as Chancellor of Durham (which is in York Province, of course).

Citing supposed ‘rules of precedent … within the 2 Provinces’ (para 9), Bursell concluded that ‘in so far as the Northern Province (sic) the Alsager test still prevails’ (para 22).  Northern ecclesiastical courts remain ‘bound’ by the Alsager guidance, whatever the southern provincial court might say.

(This confusion of binding precedent and mere judicial guidance is discussed in a separate post ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed below.)

Yet Bursell would have avoided his confusion in Sam Tai Chan if he had re-read his own judgment in Alsager.  The Chancery Court said of its guidance that ‘We hope and believe that this judgment will assist all chancellors, both in this [northern province] and in the southern province’ (p.1398).

This makes clear that guidance from the provincial court is

(1) not ‘binding’ in the way that precedent is and

(2) meant to assist all ecclesiastical courts, not just the courts in its own province.

Perhaps Bursell has now re-read Alsager.  In a recent article ‘Aspects of Exhumation and Burial’ (Ecclesiastical Law Journal, May 2017) he extolled the quality of the Alsager guidance, but did not repeat his flawed thesis on precedent.

However, the damage is done.  The Worshipful but muddled Lady Chancellor of Sheffield was clearly misled by Bursell’s thesis, and even added a further confusion of her own.  She concluded that ‘I can exercise my discretion … bound by the Alsager test and guided by the Blagdon test’: David Bell deceased 2016, para 3.  (Rather difficult to be guided by one person while being bound by another person at the same time!)

The 2 tests are briefly stated.  The Blagdon guidance commended

‘the straightforward principle that a faculty for exhumation will only be exceptionally granted’ (p.489).

The earlier guidance in Alsager had suggested that

‘the critical question … is ‘Is there a good and proper reason for the exhumation … ?’ (p.1401).

If the Alsager guidance had stopped there, the Blagdon guidance might not have been needed.  That exhumation requires a ‘good and proper reason’ is an eminently reasonable suggestion, indeed rather obvious.  Perhaps it sets the bar too low.  Any proposal to exhume a departed loved one is likely to have a good reason, or at least an understandable one.  The Blagdon guidance is stricter, requiring an exceptional reason.

But the real difficulty with Alsager is that it does not stop with its requirement of a good and proper reason for exhumation.  The full guidance reads

‘Is there a good and proper reason for the exhumation, that reason being likely to be regarded as acceptable by right thinking members of the Church at large?’

This reference to right thinking Church members seems otiose.  If there is good and proper reason for exhumation, then right thinking Church members will surely regard it as acceptable.

The Court of the Arches’ criticism was that ‘the reference to right thinking members of the Church at large is an extremely difficult test to apply in practice’ (p.488).  Chancellor Bursell did not accept this criticism in his recent article.  He grumbled that ‘civil courts have had no difficulty in applying the approach of … the man on the Clapham omnibus or of right-thinking members of society, the officious bystander, the reasonable landlord and the fair-minded and informed observer, and it is unclear why ecclesiastical courts should have greater difficulties’ (p.189).

He also cited a dictum of the Supreme Court that ‘These legal fictions [officious bystander etc] ‘belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to [Roman law]’ (n98).

But that is precisely the difficulty with the Alsager guidance.  The Chancery Court did not make clear that its ‘right thinking members of the Church’ are fictional members only, and not real members.  As the Court of the Arches noted in Blagdon ‘The Chancellor may consider that evidence ought to be taken on the matter [of what right thinking Church members would regard as acceptable]’.  How should he go about doing that?

The lay petitioner, legally unqualified and unaware of legal fictions, will be even more confused than the court: ‘For the petitioner the [Alsager] test may give the impression that mustering support … is the way to persuade the court’.  Consider a bereaved family undergoing the distress and humiliation of knocking on doors and soliciting signatures from strangers for the exhumation of their departed relative, in the mistaken belief that this will persuade the Church court to grant them a faculty.  A frankly sickening prospect.

Although the Blagdon test for exhumation is stricter than the Alsager test, the Court of the Arches’ decision on the case was actually more generous than that of the Chancery Court.  In Alsager, the petitioner wished to rebury his father’s ashes in the same grave as his (uncremated) mother, who had died many years later.  Father and mother were both interred in the same churchyard, 30 feet apart.  The mother had died in the Catholic Church, which still officially disapproves of cremation (Code of Canon Law 1983, canon 1176(3)).

Reuniting one’s parents in these circumstances is surely as good and proper reason as any for exhumation.  Yet the Chancery Court refused a faculty.  ‘Right thinking members of the Church at large’ might well consider this distinctly harsh.

In Blagdon, by contrast, the Court of the Arches sympathetically allowed parents to exhume the body of their dead son and rebury him in unconsecrated ground a long way away, but nearer to where they now lived.

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Unprecedented Confusion: A Tribute to Chancellor Bursell

Re Sam Tai Chan (2016) Durham Consistory Court, Chancellor Bursell QC

The erudite and informative Law and Religion UK blog (to which this blog is ever indebted for both information and inspiration) has helpfully drawn attention to this recent faculty case.  The judgment appears on the website of the Ecclesiastical Law Association (accessed 12th September 2016).

The Worshipful Chancellor Bursell QC’s singular contribution to the public understanding of ecclesiastical law has been discussed in other posts (e.g ‘The Rubrics of the Book of Common Prayer’, and ‘Liturgy and the Faculty Jurisdiction’, filed under category ‘Liturgy and Law’).  This case is another egregious example of it.

The Chancellor permitted a Chinese lady to exhume the body of her late husband for reburial elsewhere.  She, at least, has reason to be grateful to him, though other less fortunate petitioners for exhumation may not have.

When deciding exhumation cases, consistory courts have for many years followed guidance given by the Court of the Arches in the case of Blagdon Cemetery (2002) 4 All England Reports 482, without any apparent difficulty or controversy.  The guidance was given because guidance given by the Chancery Court in the earlier case of Christ Church, Alsager (1998) 3 Weekly Law Reports 1394 was considered unsatisfactory.

The Chancery Court is the Archbishop of York‘s provincial court (Ecclesiastical Jurisdiction Measure 1963, s.1(2)(a)).  It is therefore the principal court of the northern province, the Province of York.  The Durham Consistory Court, over which Chancellor Bursell presides, is also in the northern province.  The Court of the Arches, of course, is in the Province of Canterbury, the southern province.

It was for this reason that the Worshipful Chancellor found it necessary to disturb the tranquil operation of the post-Blagdon faculty jurisdiction.  He acknowledged that his intervention might prove ‘inconvenient’ (cf para 12).  But the exhumation case raised ‘the question … as to how rules of precedent apply within the two provinces’ (para 8).

After a lengthy discussion of the subject of judicial precedent in the ecclesiastical courts, he concluded that ‘in so far as the northern province (sic) the Alsager test [i.e the guidance given by the Chancery Court in the Alsager case] still prevails’ (para 22).  Canterbury and York are separate provinces, and they remain separate ecclesiastical jurisdictions.  The Court of the Arches has no superiority over the Chancery Court.  This means that northern consistory courts are not ‘bound’ by the Blagdon guidance, only southern ones.  On the contrary, the northern courts are bound to follow the Alsager guidance.

The Chancellor modestly forbore to mention that he was himself a member of the Chancery Court that decided Alsager, and was therefore a co-author of the unsatisfactory guidance.  He seemed to resent the Court of the Arches’ criticism of the guidance (cf para 22)  (Which is understandable, of course).  He also had a dig at some fellow northern chancellors who meekly followed the Blagdon guidance instead of adhering to the Northern Precedent (paras 13 and 14).

It is argued that the Chancellor misunderstood the doctrine of judicial precedent.  A precedent is what the court decides, not what it says, in the particular case.  Stare decisis, not stare dictis.

What, exactly, did the Court of the Arches decide in Blagdon?  The Court granted an exhumation faculty because the consistory court, which had refused exhumation, ‘did not address this [case] specifically in terms of the bringing together of parents and child in a family grave … the exercise of the [consistory court’s] discretion was flawed in so far as it was based on an erroneous evaluation of the facts in this respect, and … in the way [it] treated the lapse of time as determinative’ (para 39).

The consistory court in Blagdon had refused exhumation because it was following, or trying to follow, the Alsager guidance.  The guidance had confused the chancellor and led him into error.  The Court of the Arches therefore issued its own guidance.

Thus the only discernible ‘precedents’ in Blagdon are that

(1) a long lapse of time between a burial and an exhumation request should not be determinative of an exhumation petition, and

(2) a discretionary decision should be set aside if based on an erroneous evaluation of facts.

The guidance given in Blagdon had nothing to do with the Court’s decision on the particular case.  The decision was merely the occasion for issuing the guidance.  The guidance was issued to assist consistory courts to avoid erroneous decisions, and hence avoid the need for future appeals.

Thus the Blagdon guidance did not engage the doctrine of judicial precedent.  The guidance is just that – guidance.  It does not ‘bind’ the consistory courts of either province.  It merely seeks to assist them to avoid errors and appeals.  Guidance is not binding precedent.

Chancellor Bursell was therefore not obliged to follow the Blagdon guidance, if he did not want to.  (Whether he was wise not to do so is quite another matter, of course.)  He was free to follow his own guidance in Alsager.  Indeed a chancellor in the southern province could choose to follow the Alsager guidance and ignore the Blagdon guidance.  Or a chancellor could choose to ignore both.

Bursell’s judgment reveals a second misunderstanding about precedent.  The doctrine of judicial precedent does not apply to the grant or refusal of faculties at all, because this is not a judicial function, even though it is exercised by courts and judges.  The grant or refusal of faculties (which are licences or permissions) is an administrative or pastoral function, not a judicial one.  It is an administrative discretion.  (See post ‘Doing Justice to Faculties’, filed below).  Administrative discretion should be exercised fairly and consistently.  Clear guidance will assist this.

It is true that Bursell is far from being alone in these confusions.  The doctrine of judicial precedent is widely misunderstood.  Court judgments are often read and interpreted as if they were legislation.  And ecclesiastical judges seem unable to grasp that the faculty jurisdiction is administrative, not judicial (just as they cannot grasp that ecclesiastical courts are governed by English law and not ‘canon law’).

However, Bursell’s judgment is of poor quality, even apart from its basic confusions.  It strongly suggests that Bursell used the case merely as a convenient peg on which to hang his flawed thesis on judicial precedent.  The facts of the case and the reasons for the granting the faculty are not adequately stated.

The Chinese lady’s husband died in 1978, but the Chancellor did not require an explanation of why exhumation was not sought until nearly 40 years later.  Lapse of time may not be determinative of an exhumation case, but it is still relevant to the case.  The lady sought exhumation because the original burial was ‘a mistake by virtue of mis-information’ (para 5), but the mistake and the mis-information are not described.

Moreover, the Chancellor did not grant the faculty on the basis of a mistake, but because ‘the different ethnic approach to burial within the Chinese Christian Church provides a good and proper reason for exhumation’ (para 27), but again this ‘ethnic approach’ is not described.  Yet non-Chinese Christians whose petitions for exhumation are refused might be interested to know what it is.

The First Modern Faculty Case

Peek v Trower (1881) 7 Probate Division 21, Court of the Arches

The rector and churchwardens wished to make significant internal alterations to the parish church, to make it more convenient for the parishioners.  The vestry approved and the necessary funds were available.  However, a significant number of parishioners (60 or 70) opposed the alterations.

Unlike many late 19th century faculty cases there was no issue of worship or ritual involved.  Nor did the proposed alterations contravene any law or property right.  Nor did they relate to the necessary repair of the church.  Nor were they concerned with the accommodation of larger numbers of worshippers .  They were, as Lord Penzance, the Dean of the Arches, said ‘all matters of taste and fancy’ (p.30), as most modern faculty cases are.

Peek v Trower may even be described as the first modern faculty case.  Lord Penzance admitted that ‘I have looked into the reports of the decisions of my predecessors in search of … principles which should guide me, but without much success’ (p.27).

He was therefore obliged to formulate principles of his own.  He held that, in deciding such a case, he had to decide between two principles, or presumptions:

(1) the presumption in favour of change and

(2) the presumption against change.

According to (1), a dealing with a church should be permitted if it is adequately funded and will not ‘work mischief … impair the capacity, the fitness or the convenience of the church for the purposes of public worship’ (p.27). 

According to (2), ‘the burden is cast upon [the petitioner] to shew that [the dealing] will make things better than they are …’.  There had to be a positive case for change.  Moreover, ‘the Court ought to be satisfied that there is a general desire on the part of the parishioners, or at least of the actual worshippers, being parishioners, that the change should be made’ (p.28). 

Lord Penzance adopted principle (2), the presumption against change.  Applying this principle to the facts of the case he refused a faculty.  There was significant parochial opposition to the proposed alterations.  They ‘[had] been planned and devised by a very small number of those interested in the church’ (p.29).  There was no evidence that the present furnishings of the church were uncomfortable.

Although Lord Penzance attached much significance to parochial opposition, this factor was not decisive: ‘I am far from … lay[ing] down as a rule that the approval of an absolute majority of parishioners must in all cases be obtained … There are many matters to be taken into consideration’ (p.29).  In particular ‘The character and true motives of the opposition have to be ascertained …’.

Lord Penzance revisited the question of parochial opposition to a proposed dealing with the parish church in Nickalls v Briscoe (1892) Probate Division 269.  A couple wished to donate a stained-glass window to their parish church in memory of their deceased daughter and her four children, who were all deceased as well.  The window was approved by the vestry, but, as in Peek v Trower, there was significant opposition within the parish.  A petition against the window was allegedly signed by more than 200 people.

Perhaps moved by the tragic circumstances giving rise to the case, Lord Penzance held that a faculty should be granted for the window, notwithstanding the parochial opposition.  However, he was confronted with his own earlier decision in which he had strongly emphasized the importance of parochial support for a proposed alteration.

He drew a rather dubious distinction.  Peek v Trower had concerned a proposed alteration which ‘could not be supported on its own merits as an improvement’ (p.283).  By contrast, the proposed window in this case was intrinsically, or perhaps aesthetically, better than the proposed alteration in Peek v Trower.

The evidence in Nickalls v Briscoe suggested that the opposition was not to the window itself, but rather to the petitioners personally.  Lord Penzance found that ‘There have … been long-standing differences between parties, resulting in a general feeling of antagonism’ (p.282).  The antagonism was based on churchmanship.  The petitioners were suspected of ritualism.

Lord Penzance held that the alleged ritualism of the petitioners was irrelevant: ‘the opinions of the parish … should be opinions formed in relation to the proposed alteration itself … and not … upon the motives or objects of those who propose it’ (p.283).

Thus parochial opposition to a proposed dealing with a church is relevant only if it is based on relevant and reasonable grounds.  Opposition prompted by malice or clashes of personality or unfounded fears is not a reason to refuse a faculty.  Lord Penzance found that the proposed window had ‘no doctrinal significance’, whatever the ritualist sympathies of the petitioners.

Today Nickalls v Briscoe is usually cited for Lord Penzance’s dicta that the parish church ‘belongs not to any one generation [of parishioners]’ and suggesting that, for this reason, ‘the law has forbidden any structural alterations … save those which are approved by a disinterested authority in the person of the Ordinary’.

However, it is clear from their context that these remarks were made to rebut the suggestion that the decision in the case was inconsistent with Peek v Trower.  In fact, Lord Penzance never suggested in Peek v Trower that parochial opposition was decisive in a faculty case.  Indeed, as we have just noted, he had expressly denied this.

Conservation v Pastoral Care

The oft-quoted dicta in Nickalls v Briscoe, though unobjectionable in themselves, have been used (or misused) to justify the modern ‘conservationist’ approach to the faculty jurisdiction, and to undermine the pastoral approach adopted by Lord Penzance.

The conservationist approach follows Lord Penzance’s ‘presumption against change’ but takes it out of its pastoral context.  The result is secular, materialistic and somewhat authoritarian.  It emphasizes the ‘conservation’ of the church building as an end in itself.  The assertion that the church does not belong to the present generation of parishioners serves to imply that the ‘disinterested’ ecclesiastical judges and the diocesan advisory committees and various ‘national heritage’ bodies know best.

It is true that the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, which now mostly regulates the faculty jurisdiction, begins, at s.1, with a warm ‘general principle’ that ‘any person or body carrying out functions of care and conservation relating to churches shall have due regard to the role of a church [building] as a local centre of worship and mission’.

However, in St. Luke’s, Maidstone (1995) Family 1, Sir John Owen, one of Lord Penzance’s successors as Dean of the Arches, rejected the suggestion that worship and mission was the paramount consideration in faculty cases (p.7).  He further held that s.1 of the 1991 Measure did not even apply to the ecclesiastical courts ‘since they are not … carrying out functions of care and conservation’.  Presumably he meant that the ecclesiastical courts merely oversee those who do exercise such functions.  (Dean Owen was also the author of the conservationist ‘necessity’ test for faculty applications).

In St. Michael’s, Tettenhall Regis (1995) 3 Weekly Law Reports 299, a diocesan chancellor went so far as to hold that ‘I should not treat the worship and mission factor [in s.1] as in any way paramount’ (p.308). 

An unpublished dissertation by Desmond Carnelley ‘The Faculty Jurisdiction in the Church of England and the Future of the Ecclesiastical Exemption’ (LL.M, Cardiff University, 2002) offers a powerful critique of the ‘conservationist’ approach to the faculty jurisdiction. 

The excessive emphasis on the care and conservation of listed churches causes the pastoral aspect of the faculty jurisdiction to become neglected.  Carnelley draws an important distinction between the conservation and the preservation of ancient churches. 

Conservation demands ‘the design, appearance and setting of the edifice as it was originally built’.  There is at least a tension, if not a conflict, between conservation and pastoral need: ‘as a living, developing organism, change is of the essence of the church … in order to serve new generations of worshippers’ (p.21).

Preservation, unlike conservation, demands only ‘the upkeep … of all historic buildings, so that they are kept free from … decay’.  This does not conflict with pastoral need, indeed it serves pastoral need.

Carnelley also draws attention to the financial burden that the ‘conservationist’ approach imposes on the Church, involving as it does ‘payment to archaeologists, conservation officers, special consultants and the like … [and] the expense of advertising [faculty proceedings]’ (p.37).

Carnelley argues that ‘two basic questions underlie any debate about the care and maintenance of Anglican Churches

[1] To whom does these buildings belong? and

[2] What is the main purpose and function of a church building – what is it for?’.

These are indeed the essential questions.  The case of Britton v Standish (1705) 90 English Reports 976 tells us that parish churches are for the ‘ease and benefit’ of the parishioners.  Burder v Veley (1840) 113 English Reports 801 draws attention to the parish church’s function as a municipal amenity.  The parish church is the parishioners’ church.  It does in a sense belong to the parishioners. 

However, Griffin v Dighton (1864) 122 English Reports 767 makes clear that the parish church still exists for a particular purpose, the worship of God in accordance with the Church’s religion.

In Beckwith v Harding (1818) 106 English Reports 187 the churchwardens of a certain parish claimed the right to deal with their church without the permission of the Church authorities, pleading a local custom.  Rejecting the claim, Lord Chief Justice Ellenborough pointed out that such a custom would in effect secularise the parish church (p.1290).  If the parishioners were free to deal with their church as they pleased, without reference to the Church authorities, the church would cease to be a church.

The purpose of the faculty jurisdiction is therefore to safeguard and promote the purpose of the church.  Correctly exercised, the jurisdiction will respect the parishioners’ interest, while ensuring that they use their church in accordance with its proper purpose.  Interest and purpose both demand the preservation of the church building.  However, they may also demand expedient alterations.

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.

Doing Justice to Faculties

A faculty is a permission to do something which there is no right to do.  A faculty is not an order to do something.  A lawful order or duty to do something necessarily confers the right to do it.  A person who has the right to do something does not need permission to do it.  A faculty confers or creates a legal right that did not previously exist.

Yet there is much confusion over the nature of an ecclesiastical ‘faculty’.  A licence and a faculty are really the same thing.  The terms are used interchangeably in the older ecclesiastical case reports.  Yet in modern ecclesiastical law a permission by a court to deal with a church or churchyard is always described as a ‘faculty’, while all other permissions, whether to marry in church, to officiate as a minister, to reside out of the official residence, or to engage in a secular occupation, are described as ‘licences’.  This insinuates the idea that faculties and licences are different.

Statute law seems to misuse the word ‘faculty’ on at least two occasions:

(1) The Faculty Jurisdiction Measure 1964, s.1.  The ‘faculty’ referred to here is actually a vesting order.  S.1 empowers the consistory court to make an order, though described as a ‘faculty’, vesting part of a church building in the freeholder of the church.

(2) The Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.12(2).  The ‘faculty’ referred to in this subsection is really an order, backed by a threat.  It is a compulsory faculty.  If the work ‘permitted’ by the faculty is not carried out by the petitioner, the archdeacon will carry it out at the petitioner’s expense. 

The grant or refusal of a faculty is an administrative rather than a judicial function.  It does not engage any legal right or legal wrong.

Norman Doe acknowledges that ‘In many respects, the faculty system itself contains a strong administrative element similar to functions performed by local planning authorities’ (The Legal Framework of the Church of England 1996, p.143).  Yet ecclesiastical judges have remarkable difficulty appreciating the distinction between the administrative and the judicial function.

The case of St. Mary’s, Barnes (1982) 1 Weekly Law Reports 531 concerned a parish which wished to build a new parish church to replace one that had burned down.

The faculty petition was duly presented, but was referred to the bishop, not the chancellor.  The bishop granted the faculty without consulting the chancellor.  The chancellor was clearly very annoyed at not being consulted.  His principal objection to the bishop’s involvement was constitutional.  The bishop’s action ‘involved a breach of the constitutional principle of the separation of the functions of the legislative, executive and judiciary and a return to the absolutism of the middle ages condemned in this country since at least the middle of the 17th century’ (p.532).

The chancellor cited no authority in support of this supposed constitutional principle, which is associated with the American constitution rather than the British.  The parishioners in this case had simply asked for permission to rebuild their church, and the bishop had agreed.  It was a little far-fetched to describe such action as ‘a return to the absolutism of the middle ages’.  The action was consistent with the bishop’s cure of souls and pastoral oversight.

Moreover the chancellor failed to appreciate that the case did not involve any judicial function, merely an administrative one.  He held that faculty petitions should be dealt with ‘so that justice is done’ (p.532).  He lamented that, because of the reference to the bishop ‘no one can say that justice can manifestly be seen to have been done’ (p.534).

This prompts the question ‘justice to/for whom?’.  Justice must be done to a person or persons.  Nobody’s legal rights were at stake in the case, and no remedy or penalty was sought for or against anyone.  No injustice was alleged.  The petitioners were merely seeking permission to do something which they lacked the right to do.

It is argued that a faculty case does not require the court or other licensing authority to do justice, but rather to act justly.  A faculty cannot override a legal right.  If an authority purports to grant a faculty which infringes a legal right, it is exceeding its jurisdiction and the faculty is illegal.  The authority must respect the limits of its jurisdiction.

The faculty jurisdiction must also be exercised justly within its legal limits.  It would obviously be improper for the licensing authority to yield to improper pressure to grant or refuse a faculty, or to appear to be biased in some way.  The authority should consider all relevant factors and disregard irrelevant ones.  Reasons should be given for any decision.

In other words, the faculty jurisdiction should be exercised in accordance with the same well-established principles of administrative law that govern the exercise of a discretion.  However, the exercise of a discretion is quite different from the judicial function of doing justice.

The confusion in St. Mary’s, Barnes about the nature of the faculty jurisdiction has deep roots.  Peter Winckworth’s book A Verification of the Faculty Jurisdiction (1953) helps traces the confusion. 

The faculty jurisdiction first became prominent in the 19th century as a device for combating illegal ‘ritualism’.  Winckworth notes that

‘the Archbishops and bishops … considered that, by more frequent recourse to the faculty jurisdiction, the ritualism … might be checked without the offending clergyman having to be sent to gaol [a reference to the Public Worship Regulation Act 1874, which provided for this draconian step] … the attack [on ritualism] was to be shifted from bringing a criminal suit … to bringing a civil suit for a faculty to remove the offending ornament …’ (p.33).

This account suggests that the faculty jurisdiction was used as a means of enforcing liturgical discipline, rather than as a system of granting licences.  If the vicar indulged in controversial ritualistic practices, the Church authorities would not commence disciplinary action that would risk making a martyr of him.  Instead they would issue a faculty to the churchwardens, ‘permitting’ them to remove the ornaments and decorations involved, and so deprive the vicar of the opportunity of ritualism.

These ‘faculties,’ issued in the late 19th and early 20th centuries to oppose ritualism, were not really permissions so much as disguised orders to do, or refrain from doing, certain acts.

Wincworth relates that the so-called ‘chancellors’ report’ of 1913, which laid the foundations of the modern faculty jurisdiction, stated that ‘every application for a faculty is a cause in a court of law which may become contentious and … has to be dealt with … on judicial principles and by judicial methods’ (p.8).

This perpetuated the confusion that had developed in the later 19th century.  It may be correct to speak of a ’cause of faculty’ , but this may be confused with a cause of action.  A cause of action concerns a right or wrong.  A person has a cause of action if his legal rights have been infringed in some way by another’s wrong.  If a person requires a faculty he cannot have a cause of action.  If a person has a cause of action he requires not a faculty but a remedy.  A cause of faculty is based upon a need or a wish, not a right or a wrong.

It is true, of course, that faculty cases can be ‘contentious’, the subject of dispute.  An application for a faculty may be opposed (though most faculties are unopposed).  To that extent they may resemble contested causes of action.

However, even a contentious faculty case still does not involve legal rights or wrongs, merely differences of opinion and sentiment.  One party may think that a proposed stained-glass window is fine and beautiful and an aid to religious devotion, another may think it ugly and mediocre and an unnecessary expense.  The resolution of such a dispute is a pastoral rather than a judicial exercise.

As Doe observed, a faculty, being a permission to deal with land and buildings, resembles secular planning permission.  The law views the grant or refusal of planning permission as an administrative, not a judicial, function.  This is made clear by two cases, B Johnson & Co v Minister of Health (1947) 2 All England Reports 395 at 399, and R v Secretary of State for the Environment ex parte Alconbury (2001) 2 Weekly Law Reports 1389.

It is true that a faculty / permission, once it has been granted, prima facie confers or creates a legal right.  Thus the revocation of a faculty, as distinct from the original grant, may be a judicial function, because it deprives a person of a legal right.

The Clergy Discipline Measure 2003, s.8(2) and the Pluralities Act 1838, s.98 both provide that licences to officiate may be revoked only after a judicial process.  However, when exercising the faculty jurisdiction, Church courts tend to exclude any legal right by granting faculties subject to ‘further order’.  This means that the faculty can be revoked, or its terms limited, should circumstances change, but without infringement of a legal right.

The Necessity of the Ecclesiastical Exemption

In its present form the faculty jurisdiction is closely connected to the ecclesiastical exemption from listed building consent.  This development is related by Peter Winckworth in A Verification of the Faculty Jurisdiction (1953).

The late 19th century saw a revival of the Gothic style of architecture and a new interest in the preservation of old buildings.  Many churches were neglected and dilapidated.  The early 20th century was also an era of political radicalism, and religious sectarianism (between Christians) was far stronger than it is today.

The radical Liberal government elected in 1906 wished to disestablish the Church in Wales and also to deprive it of a substantial amount of its property.  There was a distinct possibility that Welsh disestablishment might presage the disestablishment of the Church of England as a whole.  Across the Channel in France the anticlerical third republic was seeking to bring much ecclesiastical property under secular control.

The Church of England therefore wished to forestall moves towards secular control of Church property by proposing an effective regime of its own.  In 1913 the then Archbishop of Canterbury, Randall Davidson, successfully persuaded Parliament to exempt ecclesiastical buildings from secular control of ancient monuments, by making his famous ‘pledge’ that the Church of England would take proper care of its buildings by use of the faculty jurisdiction.  This was the origin of the ‘ecclesiastical exemption’.

The modern faculty procedure was largely settled by a committee of diocesan chancellors appointed at the Archbishop’s request.  Their report in 1914 concluded that the protection of churches demanded

(1) faculty applications in all proper cases and

(2) due observance of faculties when granted.

These conditions in turn required an effective enforcement procedure, with the involvement of diocesan advisory committees and archdeacons.

The Archbishop’s pledge and the chancellors’ report were evidently effective.  Ecclesiastical buildings were left to the ecclesiastical courts.  The outbreak of the first world war naturally distracted attention from the subject.  The ecclesiastical courts were provided with a fresh source of activity following the abolition of most of their jurisdiction in the mid-19th century.

The first Faculty Jurisdiction Measure was not passed until 1938, a full quarter-century after the Archbishop’s pledge.  Faculty law expanded in the second half of the 20th century, and seems to have followed the expansion of secular planning and environmental law (which is almost entirely a postwar phenomenon).

The ecclesiastical exemption is currently contained in a statutory instrument of 2010 (no. 1176) (formerly 1994/1771).  The exemption is not particular to the Church of England.  Most Christian denominations also enjoy the benefit of the exemption for their listed places of worship.

The practical effect of the exemption was discussed by Sir John Owen, Dean of the Arches, in St. Luke the Evangelist, Maidstone (1995) Family 1.  It means that the Church may make alterations to the interiors of their listed places of worship without needing the permission of the secular planning authorities.

The Dean explained the importance of the exemption: ‘The recognition that the Church should control the internal ordering of buildings used for worship is … recognition of the freedom to worship’ (p.5).

However, as the Dean noted, ‘planning permission, as well as a faculty, must be obtained for any alteration or extension which materially affects the external appearance of a church’ (p.5).  Thus the grant of a faculty does not preclude the need for planning permission.

The ecclesiastical exemption may well be justified on the ground of freedom of worship.  However, case law suggests that the ecclesiastical courts  are reluctant to exercise the freedom for fear that the exemption will be withdrawn.  The criteria for obtaining a faculty for alterations to a listed church may be stricter than those for obtaining listed building consent for dealings with secular buildings.

This extreme caution was first exhibited by Sir John Owen in St. Mary’s, Banbury (1987) 1 All England Reports 247.  He held that ‘a listing [of a church] does indicate that a faculty which might affect the … architectural or historical interest … should only be allowed in cases of clearly proved necessity’ (p.250).  Liturgical, aesthetic and practical reasons for alteration ‘are all minor when weighed against the fact that St. Mary’s is a [listed] building’ (p.254). 

He then laid down as a guideline for ecclesiastical courts that ‘when a church is listed … a faculty which would affect its character … should only be granted in wholly exceptional circumstances … clearly showing a necessity for such a change’.

This test of ‘necessity’ was strongly criticised by the Court of Ecclesiastical Causes Reserved (‘CECR’) in St. Stephen’s, Walbrook (1987) 2 All England Reports 578.  That case concerned the introduction of a circular stone altar sculpted by Henry Moore.  Sir Ralph Gibson stated that

‘The ecclesiastical exemption … could have imposed on the [ecclesiastical] courts … a restriction in the form stated by the Dean of the Arches [in St. Mary’s, Banbury] … but Parliament did not do so, and I see no reason to impose it by judicial decision … Parliament relied on the care and responsibility of the ecclesiastical authorities … to ensure that churches of special architectural and historic interest are as fully protected in the interest of the general public as are secular buildings in the secular context’ (p.599).

He continued:

‘The principles applied in the faculty jurisdiction have … long recognised the obligation to protect for the whole community and for future generations … churches of special architectural and historic interest against irreversible and inappropriate changes … [However,] the extent of that obligation … is not … rightly defined by the concept of ‘proved necessity’.  The right approach … is to exercise discretion as … Parliament intended that it should be exercised, namely in accordance with established principles and that includes … the interest of the community as a whole in the special architectural and historic attributes of the building and … the desirability of preserving the building and any [special] features … which it possesses.

‘The discretion, however, is to be exercised in the context that the building is used for the purposes of the Church … the service of God, as the Church … perceives how that service is to be rendered’ (pp.599-600).

On this view, the ecclesiastical exemption (which had, after all, existed for more than 60 years before Sir John Owen formulated his test of ‘necessity’) did not impose or demand any new standard, merely the conscientious application of existing standards by the ecclesiastical courts.

Sir Anthony Lloyd, another member of CECR, added that ‘The ecclesiastical exemption … [does not] justify an approach as strict as that laid down in St. Mary’s, Banbury … Listed building consent is given every day in ordinary cases which fall short of ‘clearly proved necessity’ (p.605).

However, these powerful dicta seem to have been ignored by the Arches and consistory courts.  Dean Owen even restated his ‘necessity’ test in the St. Luke’s, Maidstone case, without even mentioning the Walbrook case.

Chancellor Sheila Cameron (later Sir John Owen’s successor as Dean of the Arches) also laid down a requirement of ‘necessity’ for alterations to listed buildings in the unreported case of Bishopsgate in 1993.  According to the so-called ‘Bishopsgate questions’ laid down in this case, the petitioners for a faculty must satisfy the court of the necessity of the alterations, and that the necessity outweighs any ‘adverse effect’ to the building.

In Bishopsgate, Chancellor Cameron defined ‘necessity’ as ‘something less than essential, but more than desirable or convenient’.  This definition may be rather hard to reconcile with the received definition, according to which a necessity is something essential.  In the context of alterations to a church, necessity implies an alteration needed to maintain the structural soundness of the building, or perhaps to maintain its ability to function as a place of worship.

The Faculty Jurisdiction Rules 2000 (No. 2047), the rules currently in force, were drawn up by a committee which included both Owen and Cameron.  Unsurprisingly, the Rules incorporate the necessity test.  Faculty petitioners in listed building cases are required to submit a ‘statement of needs’ explaining why the needs of the parish cannot be met without changes to the church building, and why they are necessary to assist its worship and mission (article 3(3)).

If the test of necessity were applied literally, very few alterations to listed churches could be permitted.  However, the case law suggests that, in practice, the ecclesiastical courts do not apply the test literally, and extend it to permit dealings with churches that are merely desirable or convenient.  Of course, this does tend to render the test rather meaningless.

The case of St. Mary’s, Longstock (2006) 1 Weekly Law Reports 259 provides a good illustration of this.  A faculty was sought for a stained-glass window in a listed church, to commemorate the wife of a former vicar.  There was no objection.

The consistory court concluded that ‘The arguments in favour of this window outweigh any mild adverse effect’ (p.265) and granted the faculty.  Thus the court implicitly conceded that the faculty was necessary.

However, the court was clearly aware of the difficult line of reasoning that the Banbury and Bishopsgate cases involved: ‘How can the replacement of a sound window … with a commemorative window be properly styled ‘necessary’?’ (p.262).  It suggested that the Bishopsgate understanding of a ‘necessity’ is ‘something that is requisite or reasonably necessary’ (p.261).

However, even if ‘necessary’ means only ‘reasonably necessary’, the facts of St. Mary’s, Longstock obviously did not satisfy the test, in any meaningful sense.  The only answer to the court’s own question is that a memorial to a deceased parishioner or vicar’s wife, however worthy and respected, cannot possibly be regarded even as reasonably necessary, but it may be desirable and appropriate.

It may be said for the chancellors and Deans of the Arches that they have more practical experience of the faculty jurisdiction than did the judges who spoke in the Walbrook case.  The ‘necessity’ test may have certain practical justifications to commend it.  Its strictness will appease conservationists and planning authorities who might otherwise wish to deprive the Church of the ecclesiastical exemption.  It will also concentrate the minds of prospective petitioners for faculties, and discourage whimsical, ill-considered proposals.

However, publication in the law reports of an ecclesiastical court judgment which justifies a memorial window as a necessity is unlikely to promote the study or reputation of ecclesiastical law.