ecclesiasticallaw

Ecclesiastical law

Category: Parochial Administration

The Dual Function of the Parochial Church Council: Representative and Trustee

‘My view is that the [parochial church council] does not represent the laity but is part of my staff’ (tactless incumbent in the case of St. Peter, Roydon (1969) 2 All England Reports 1233, quoted at p.1235)

Parochial Church Councils (‘PCCs’) are the successor of two earlier parochial institutions

(1) the Vestry and

(2) the Church Trustees,

rather as the Church Commissioners are the successor of two ‘parent’ institutions.  The comparison is admittedly inexact.  The Ecclesiastical Commissioners and Queen Anne’s Bounty were dissolved altogether by the Church Commissioners Measure 1947 (s.2).  Vestries and Church Trustees were not dissolved when PCCs were created, nor were all the functions of Vestries transferred to PCCs.  However, the PCC’s functions were inherited from the Vestry and the Church Trustees.

Like the Court of the Arches, the Vestry took its name from the place where it originally met.  It was a corporation at common law (Still and Bunn v Palfrey (1841) 163 English Reports 624 at p.626).  In Wilson v M’math (1819) 161 English Reports 1260 it was noted that ‘at the common law, every parishioner who paid to the church rates … and no other persons had a right to come to these [vestry] meetings’ (p.1261, quoting).  The ratepaying parishioners met with the incumbent or other parochial minister, the minister being ‘the first, and … integral, part of the parish’ (p.1263).  The Vestry taxed itself by voting the church rate.

In Lee and Parker v Chalcraft (1821) 161 English Reports 1439, it was further noted that ‘The assessment of the parishioners to a [church] rate … is the very object of their meeting in Vestry.  They assess their rate with their minister at their head to consider this question’ (p.1442).  The agreed church rate was then supposed to be confirmed by the Church court, though this legal formality was ‘unfortunately often omitted’.

Compulsory church rates were abolished in 1868.  This rendered the ecclesiastical Vestry somewhat superfluous.  Thenceforth the parishioners’ care of their church ceased to be a legal duty in any meaningful sense, and became instead a voluntary labour of love determined by religious piety rather than rateable value.

The Compulsory Church Rate Abolition Act 1868 therefore provided that ‘trustees may be appointed in any parish for the purpose of accepting … and of holding any contributions which may be given to them for ecclesiastical purposes in the parish’.  The Church Trustees were the incumbent and two parishioners.  One parishioner-trustee was chosen by the benefice patron, the other by the bishop.  The Church Trustees were also a corporation.

The PCC was first constituted on a legal, statutory basis by the Church of England Assembly (Powers) Act 1919 (schedule, para 2(1)(i), 12, 13, Appendix II).  The membership of the PCC is now determined by the Church Representation Rules scheduled to the Synodical Government Measure 1969.

The PCC’s functions, as distinct from its constitution and membership, were first provided in a separate Measure of 1921.  That Measure was consolidated with later pieces of legislation on PCC functions in the Parochial Church Councils (Powers) Measure 1956.  Thus the constitution and functions of PCCs are still regulated by different pieces of legislation.

The 1956 Measure expressly refers to the PCC as the ‘successor’ to the Vestry and the Church Trustees (s.4).  Between them, the Church Representation Rules and the 1956 Measure indicate that the PCC exercises two functions inherited from the two corporations from which it is descended:

(1) representative of the parish to the Church and

(2) trustee of the Church’s property in the parish.

Representative

The 1919 Act makes clear that the laity are ‘represented’ in the PCC. Like the Vestry the PCC must include the incumbent, also other clergy and lay ministers of the parish.  The PCC also includes lay representatives.  Lay representatives must be Anglican communicants.

The PCC is therefore a partly elective body (though only partly), and its membership is subject to a religious qualification (i.e Anglicans only).  The Vestry, by contrast, was not elected.  Its members represented themselves.  Membership of the Vestry was based on a property qualification, and so could include non-Anglicans.  (Some parishes used to have select vestries but, as their name implies, the membership of these bodies was selective, not elective.)  The Church Trustees, of course, were not elected by the parishioners at all, only by the bishop and the patron.

The right to elect PCC members is itself subject to a religious qualification.  Lay electors must be members of the Church of England (or prepared to declare themselves such) who either live in the parish or habitually worship in the parish church (Appendix 1, rule 1).  Their names are entered on the electoral roll of the parish.  Lay representatives must themselves be parish electors (rule 10).

parochial church meeting must be held annually, on or before 30th April, just after Easter.  All persons on the electoral roll may attend and participate in this meeting, but ‘no other lay person shall be so entitled’ (6.2).

This annual meeting, unlike the PCC, cannot claim any descent from the Vestry.  The PCC, like the Vestry, is a corporation (1956 Measure, s.3), but the annual meeting is not.  Like the electoral roll from which it is drawn, the annual meeting is a completely new creation of modern synodical government.  It provides the basis of lay representation in synodical government.  Its sole function is electoral.  Thus it elects representatives to the PCC and to the deanery synod.  It elects (or appoints) an independent examiner or auditor to scrutinise the parish finances.  (It also elects sidesmen to assist the churchwardens, though sidesmen have no involvement in synodical government.)

The annual meeting has certain rights to information, but the only apparent purpose of these rights is to inform its choice of representatives.  Thus Rule 9 provides for reports to be made on the proceedings of the PCC and the deanery synod during the past year and ‘the activities of the parish generally’, and on the fabric, goods and ornaments of the parish church (or churches).  The PCC accounts and financial statements must also be ‘furnished’ to the annual meeting (1956 Measure, s.8(1)).  As a general rule, electors are allowed to see the minutes of PCC meetings, but the PCC may deny them access to minutes that it deems confidential (Appendix 2, 12(f)).

Electors may ask questions and initiate discussion at the annual meeting.  Provision exists for special or extraordinary parochial meetings to be convened in addition to the annual meeting (rules 22(1) and 23(1)).  However, no parochial meeting can fetter or veto any decision of the PCC.  The PCC’s obligation is limited to ‘tak[ing] into consideration any expression of opinion’ by a parochial meeting (1956 Measure, s.2(3)).  If the electors are unhappy with their PCC’s decisions, all they can do is vote in new representatives at the next annual meeting.

The 1956 Measure formerly provided, at s.8(3), that the PCC accounts required the ‘approval’ of the annual meeting, but this toothless provision (if the meeting refused to approve the accounts, this still had no effect on the PCC) was repealed by the Miscellaneous Provisions Measure 2005.

If the PCC is the representative of the parishioners, the power of the Church authorities to intervene in parochial elections should be minimal.  PCC elections are not required to be confirmed by a Church authority.  Once elected, PCC members hold office automatically from the conclusion of the annual meeting (rule 16(1)).  However, there are appeals procedures for settling disputes over votes and elections, and over entries on the electoral roll (rules 44 and 43).

The bishop has a rarely used power under the Vacation of Benefices Measure 1977 (s.10(6)) to disqualify persons from serving on PCCs (rule 10).  Persons who have been disqualified under secular law from being charity trustees are likewise disqualified from the PCC.  Following the very recent Safeguarding and Clergy Discipline Measure 2016, the bishop will also be able to disqualify, or to suspend an already-elected PCC member, if the individual concerned is considered to present a ‘significant risk of harm’ to children or ‘vulnerable adults’.

The 1956 Measure provides that the incumbent and the PCC are required to ‘consult together on matters of general concern and importance to the parish’ (s.2).  This may do no more than make explicit what was implicit in the constitution of the Vestry.  However, the 1956 Measure also integrates the PCC into the modern synodical process.  Thus the PCC

(1) may give advice to the diocesan synod and the deanery synod on any matter referred to it, and also raise matters with those synods, and

(2) should also make known and put into effect any ‘provision’ made by those synods, but this is ‘without prejudice to the powers of the council on any particular matter’ (s.2).

The representative function of the PCC is exercised in many different contexts, e.g

(1) choice of liturgy, under the Worship and Doctrine Measure 1974, s.1(3)

(2) choice of Bible, under the Prayer Book (Versions of the Bible) Measure 1965, s.1(1)

(3) choice of ministerial vesture during divine service, under canon B8(6)

(4) choice of incumbent, under the Patronage (Benefices) Measure 1986

(5) pastoral reorganisation procedure, under the Mission and Pastoral Measure 2011 and

(6) the faculty procedure

The 1956 Measure also confirms the PCC’s ‘power to make representations to the bishop with regard to any matter affecting the welfare of the Church in the parish’ (s.7(5)), though such a power hardly requires statutory authority.

The PCC is not the only representative of the parish.  The lay representative to the deanery synod also represents the parish in synodical government.  Churchwardens continue to be elected by all resident parishioners, regardless of religion, as well as by those on the electoral roll (Churchwardens Measure 2001, s.5(1)), a wider electoral franchise.

Trustee

Being trustee for the Church in the parish is rather different from being representative of the parish.  As trustee, the PCC represents the Church authorities rather than the parishioners.

The objects of the PCC’s trust are stated in the 1956 Measure.  The inherited objects are stated at s.4(1)(ii)

‘(a) the financial affairs of the church including the collection and administration of all monies raised for church purposes …

(b) the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof

(c) the care and maintenance of any churchyard …’.

S.4(1)(ii) suggests that these objects were formerly the responsibility of the churchwardens rather than the vestry.  Hence the PCC is the successor of the churchwardens, as well as the Vestry and the Church Trustees.  However, the churchwardens exercised their responsibility as agents or executors of the parish.  The old legal duty to maintain the church and churchyard was imposed on all the parishioners.  The work involved was indeed organised by the churchwardens, but it was paid for by the parish, which meant the Vestry.  The churchwardens had no financial liability to pay for the work.  They were required to collect the church rate and then use the funds to pay for the church and churchyard, but it was the Vestry which voted and paid the rate in the first place.

As well as this inherited trust, the 1956 Measure created a new missionary trust for the PCC, stated at s.2(2)(a)

‘co-operation with the incumbent in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical’.

The original version of s.2 provided for the PCC to ‘co-operate with the minister in the initiation, conduct and development of Church work within the parish and outside’.

In St. Peter, Roydon, cited above, the consistory court held that this duty of cooperation meant that the PCC ‘must pay proper regard to the wishes or suggestions of the minister … but, having done that, they must be free to differ from him if, in their view, the honest discharge of the particular duty requires them to do so’ (p.1235).

The incumbent and the PCC jointly determine how the money raised in church collections is to be spent (s.7(4)).  If they cannot agree, the bishop decides (s.9(3)).

To perform its trust, in relation to the church and churchyard and to missionary work, the PCC has a broad power ‘to frame an annual budget of moneys required for the maintenance of the work of the Church in the parish and otherwise, and to take such steps as they think necessary for the raising, collecting and allocating of such moneys’ (s.7(i)).  It may also ‘levy and collect a voluntary church rate’ (s.7(ii)).

The PCC can acquire property, whether real or personal, ‘for any ecclesiastical purpose affecting the parish’ (s.5(1)).  This resembles the power conferred on the Church Trustees by the 1868 Act.  However, consistent with its modern missionary function, the PCC can also acquire property for educational schemes, ‘facilities for the spiritual moral and physical training of persons residing in or near the parish’.

The PCC’s trustee function is much more closely controlled by the Church than its representative function.  All dealings with the church and churchyard are, of course, subject to the faculty jurisdiction exercised by the ever-vigilant ecclesiastical courts.  Any acquisition of property requires the consent of the diocesan authority (s.6).  Although the PCC is a body corporate (s.3), it is not allowed to own real or investment property.  It may acquire such property, but the property must then vest in the diocesan authority (s.6).  The PCC is managing trustee of the property, but any dealings with it will require diocesan consent, though a recent change in the law suggests that minor dealings may not require such consent (Ecclesiastical Property Measure 2015, s.8).  The PCC’s exercise of powers concerning educational schemes also requires the consent of the diocesan authority (1956 Measure, s.5(5)).  The 1956 Measure suggests that the PCC can only own deposit accounts and short leases (i.e periodic tenancies).

PCC accounts must be ‘laid before’ the diocesan authority annually (s.8(4)).  The bishop or archdeacon, or any person authorised by them, have the right to see all PCC minutes, whether confidential or not (Appendix 2, 12(e)).  However, the PCC’s annual budget, unlike the church rate, does not require to be confirmed or approved by the diocesan authority.

Just as they retain a representative function independent of the PCC, so the churchwardens retain certain distinct responsibilities for the care of church and churchyard.  The 1956 Measure also preserves the churchwardens’ supposed property in the goods and ornaments of the Church (s.4(2)).  The administration of ecclesiastical charitable trusts was not transferred from the Vestry to the PCC (1956 Measure, s.4(1)(i)).  Such trusts are now regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.

The Code of Canon Law 1983 suggests that the trusteeship exercised by the PCC in the Church of England may be exercised by two separate committees in the Catholic Church.  Every Catholic parish must have a parochial finance committee (canon 537).  The local bishop may also establish a parochial pastoral council, under the chairmanship of the incumbent (the ‘pastor’), through which lay parishioners may ‘give their help in fostering pastoral action’ (canon 536).

The constitutions of both committees are determined by local law, so the bishop could provide that the same committee should serve both as finance committee and as pastoral council.  He could also permit parochial elections on the Anglican model.  However, the 1983 Code is clear that lay parishioners enjoy only a consultative (i.e non-binding) vote in the pastoral council.  Also parish committees can have no representative function in the Catholic Church.  The incumbent alone represents the parish (canon 532).

The English Parish

Phillimore’s Ecclesiastical Law records an ancient dictum that ‘A parish is the place in which the people belonging to one church dwell’ (2nd edition, 1895, quoted at p.1638).  On this view an ecclesiastical parish has three essential elements, a territory (the place), a community (the people) and place of worship (the church).  However, a place of worship will require an incumbent minister, who will in turn require to be appointed and maintained.  A community will also require some form of governance.

It is therefore argued that a parish has 9 constitutive elements.  This is an attempt to identify and describe them, but not to provide a comprehensive account of the law by which they are regulated.  (That would require an entire book.)

1.  Territory

Blackstone describes a parish as ‘that circuit of ground in which the souls under the care of one parson or vicar do inhabit’ (Commentaries vol 1, p.107).  The English parochial structure remains strongly territorial in character.  This territoriality is, of course, the basis of the Church of England’s proud claim to be a truly national Church, with ‘no inch of territory … no place … beyond the reach of the spiritual ministrations of a priest or place of worship’ (L Paul The Deployment and Payment of the Clergy (1964), p.23).

The area of a modern statutory parish will now usually be indicated on a map or plan annexed to the scheme by which it is constituted (Mission and Pastoral Measure 2011, s.52(2)).  Every new parish must be named by its constituting scheme (s.31(2)).

Parishes are subject to extra-parochial places, which are defined as universities, colleges, schools, hospitals and other public or charitable institutions (Extra-Parochial Places Ministry Measure 1967, s.2(1)).  As their name implies, such places are outwith the parochial structure, even if physically located within the territory of a parish.  However, a person who resides in an extra-parochial place is deemed to reside in the parish which it abuts, and hence to be a parishioner.  Any uncertainty on this point is determined by the bishop’s council of the diocese (Church Representation Rules 1(3)).  Any uncertainty about whether a particular area or place is, or is within, a parish or extra-parochial place is determined by the Church Commissioners after consultation with the bishop (s.105(2)).

Independent mission initiatives may also operate within parishes.  Mission initiatives first received legal recognition under the Dioceses, Pastoral and Mission Measure 2007.  They are now regulated by the 2011 Measure (ss.80-84).  A mission is constituted by order of the bishop.  The objective of the mission should be ‘fostering or developing a form of Christian community, to promote or further the mission of the Church, or any aspect of it’.

If an ecclesiastical parish is understood as a territory, it follows that ‘parishioners’ may include persons who are not members of the Church of England.  Roman Catholics, Methodists and Muslims are obviously not members of the Church of England but they are still all parishioners, because they all live within the territory of a parish.

2.  Community

While English law defines the parish as a territory, Roman Catholic law defines it as a corporation.  According to the Code of Canon Law 1983, a parish is ‘a definite community of the Christian faithful’ (canon 515.1).  Thus, in contrast with English law, persons who are not members of the Church cannot be parishioners.  A commentary suggests that the word ‘parish’ is derived from a Greek word that originally meant ‘a pilgrim people’ (in contrast to the English idea of a settled community), and that ‘however important territorial factors are in parish organisation, what is really constitutive of the parish is its being a community of persons’ (The Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.416).

Despite its corporate character a Roman Catholic parish ‘as a general rule is to be territorial’ (canon 518).  However, personal parishes may be established if this is ‘useful’ (canon 518).  Thus Eastern rite Catholics within the jurisdiction of a Latin rite bishop may be constituted as a personal parish.  The Anglican Ordinariates comprise personal parishes of former members of the Anglican Communion.

As the churchgoing population has become more mobile, modern English law has extended the definition of a parishioner to include persons who worship regularly in the parish church but who do not live within the parish.  A non-resident lay communicant is entitled to have his name entered on the electoral roll of the parish if he has worshipped regularly in the parish church during the previous 6 months (Church Representation Rules 1(2) and (4)).  He also has the same right as a resident parishioner to marry in the parish church (Marriage Act 1949, s.72(2)).  The Marriage Measure 2008, as amended in 2012, extended the right to marry in the parish church to persons who can show a personal or familial connection with the parish or the church.

3.  Church

If a building is not already a parish church it cannot be legally constituted as such until

(1) the Commissioners approve it as ‘suitable’, and

(2) it is consecrated (Mission and Pastoral Measure 2011, s.41(2)).

‘Suitable’ is not defined further.  Canon law suggests that only a permanent place of worship should be consecrated.  The original Roman Catholic Code of 1917 forbade consecration ‘if it can be reasonably foreseen that a church will be turned to profane uses’.  Churches made of wood or iron were not supposed to be consecrated on account of their impermanent character (canons 1165, now abolished).

A parish has no right to a parish church.  Thus a new parish may be created even if it has no parish church (2011 Measure, s.31(4)).  A scheme may also provide that an existing parish church shall cease to be constituted as such (s.41(1)).  If there is already a church in the area of a newly-created parish, this may, but need not, be designated as the parish church.

However, a parish with no parish church must still have some place of worship.  If a parish has no church the bishop must licence a building, or part of a building, within the parish for public worship (s.43(1)).  Thus the bishop consecrates a permanent place of worship but licences a temporary one.  This rule seems to echo the canon law.

A licensed place of worship may also be designated the parish centre of worship (PCW).  Thus a building which is not a church requires to be both

(1) licensed for public worship by the bishop and

(2) appropriately designated by him

in order to become a PCW.  The designation of a PCW must be under seal (s.43(6)).

Although the bishop is obliged to licence a place of public worship he is not expressly obliged to designate a PCW.  S.43(3) suggests that a bishop may designate a PCW even if there is already a parish church.

4.  Benefice

While upholding the fixed territorial character of parishes, modern ecclesiastical law permits considerable flexibility of parochial ministry.  A single incumbent may have pastoral responsibility for more than one parish.  Contrariwise, a single parish may be under the pastoral care of more than one incumbent.

The former arrangement may be effected in one of two ways:

(1) the single incumbent may hold two or more benefices in plurality (2011 Measure, s.32)

(2) the benefices themselves may be united or merged into a single united benefice (s.31).  A distinction is therefore drawn between a parish and the area of a benefice.  Several parishes may share the same benefice.

A plurality is obviously a looser arrangement than a united benefice.  The bishop may permit the incumbent of a plurality to resign one or some benefices but not all of them (s.32(4)).  Also, on a vacancy in the benefices, the plurality may be terminated at the instance either of the bishop or one of the parochial church councils (s.32(2)).  A united benefice may not be dissolved in such circumstances, unless its constitution provides for this.

The latter pastoral arrangement may also be effected in one of two ways:

(1) In a group ministry, each incumbent is required to assist the other incumbents in the group ‘so as to make the best possible provision for the cure of souls throughout the area of the group’ (s.35(1)).

(2) A team ministry is a more radical departure from traditional parochial ministry.  It is a sharing of the cure of souls by two or more clergy within the area of one benefice (s.34(1)).  A team ministry comprises a team rector and one or more team vicars.  In a traditional parish a rector and vicar never work side by side.  Teams vicars are quasi-incumbents, though their offices are licensed, not beneficed (s.34(4).  A team vicar, or other member of the ‘team’, may be assigned a special cure of souls of part of the area of a benefice or a particular ‘pastoral function’ within the team ministry (s.34(8)).

Group ministry and team ministry are not mutually exclusive.  A group ministry may include a benefice which is constituted as a team ministry (s.35(6)).

If a benefice is vacant for a long time, a licensed priest-in-charge acts in place of the incumbent.

5.  Patronage

A right of presentation to a benefice, or advowson, was originally a right of property, a so-called ‘incorporeal hereditament’ similar to a right of way.  However, as a result of the Patronage (Benefices) Measure 1986, most advowsons have been severed from land (s.32).  Now they are merely the personal right of the patron.  Only rights of presentation attaching to benefices and bishoprics retain a connection to land.  Thus if an incumbent is ex officio the patron of another benefice, the right of patronage continues to be part of the incumbent’s benefice property.

The patronage of a statutory benefice or plurality should be provided in its constitution (2011 Measure, s.46(2)).  If the constitution is silent the right of presentation vests in the diocesan patronage board (s.46(3)).  The patronage of a team rectory and the appointment of a team vicar are regulated by schedule 3 of the 2011 Measure.

A patron’s title is now proved by registration on a diocesan register (1986 Measure, s.1).

The patron’s exercise of a right of presentation (as distinct from his ownership of it) may be suspended under s.88 of the 2011 Measure.  Hence the need for a priest-in-charge.

6.  Endowment

The mediaeval canon law discussed in the preceding post suggests that the parish church and the supporting endowment were originally inseparable, and that together they formed the basis of the ecclesiastical parish.  Blackstone held that the boundaries of a parish were originally determined by the appropriation of tithes to a particular church and incumbent (Commentaries, vol 1, p.109).  From the middle ages until relatively recently, incumbents resembled self-employed farmers, men of property who lived off the rents and profits of their glebe land, and, of course, tithes.

The case of Greenslade v Darby (1868) 37 Law Journal 137 suggests that the churchyard may be a kind of hybrid of church and glebe.  Like the church it fulfills a religious and parochial purpose but, like glebe, it is also a source of profit from cultivation.  The rector (who in that case was a lay rector, not an incumbent) therefore has the right to use the churchyard land for profit, albeit only to the extent that this use is not ‘unseemly or inconsistent with [the land] being consecrated’ (p.143).

Tithes were originally payable in kind (wood, grain, cattle, sheep, poultry etc).  Later, they took the form of a payment of money called the tithe rentcharge or corn rent.  The Tithe Act 1836 commuted almost all tithes into rentcharges.  Tithe rentcharge was finally abolished a century later by the Tithe Act 1936.

The Endowments and Glebe Measure 1976 finally severed the ancient connection between parish church and endowment.  Under s.15 of the Measure, all benefice glebe that had hitherto vested in the incumbent was transferred to the diocesan board of finance (s.15), and so became part of the diocesan glebe instead (s.45(1).  Modern incumbents therefore resemble salaried employees rather than gentleman farmers.  The diocesan board of finance is now responsible for the payment of clergy stipends (Miscellaneous Provisions Measure 2000, s.1(1)).  There is a national minimum stipend fixed by the Archbishops’ Council (Terms of Service Regulations 2009, reg 11(1)).  Pensions are also administered nationally by the Church of England Pensions Board.

7.  Parsonage

Although he is no longer master of glebe and tithe, the incumbent remains the nominal freeholder of the parsonage (the official residence of the benefice) even if his occupation of it now resembles that of a tenant or licensee of the Church.

The Parsonages Measure 1938, extensively amended by more recent Measures, and the Repair of Benefice Buildings Measure 1972 are the two principal statutes regulating parsonages.

Much of the 1972 Measure resembles a kind of statutory lease, stating the respective rights and duties of the Church and the incumbent towards the parsonage.  It regulates the incumbent’s occupation of the parsonage.  The 1938 Measure, by contrast, regulates dealings with parsonages between the Church and outside third parties.  It is principally concerned with the sale of old parsonages and the purchase of new ones.  Thus, while much of the 1972 Measure resembles a lease, the Parsonages Measure resembles a conveyancing contract and protocol.

Although the incumbent is freeholder, the Endowments and Glebe Measure 1976 confers a power of compulsory acquisition of the parsonage from him, if the Church considers that it is no longer necessary for his ‘convenient occupation’ of the incumbent (s.32).

A house that is built or purchased for use as a parsonage must be certified as such by the bishop (Parsonages Measure 1938, s.11).  The constitution of a benefice may, but need not, designate the official residence of the incumbent, or of a team vicar (Measure and Pastoral Measure 2011, s.45(1)).

An incumbent has no a priori right to a parsonage house, just as a parish has no right to a parish church.  However, under the new regime of ‘common tenure’ introduced by the Ecclesiastical Offices (Terms of Service) Measure 2009, other full-time stipendiary clergy and lay ministers are entitled to accommodation ‘for the better performance of [their] duties’ (s.4(1)).  A priest-in-charge of a vacant benefice will usually live in the parsonage (cf. 2011 Measure, s.86(4)).

8.  Churchwardens

The normal rule is two churchwardens to a parish, but the Churchwardens Measure 2001 permits a different number of churchwardens on the basis of local custom or special statutory authority (s.11).  Moreover, if a single parish has more than one parish church, or has a parish church and a PCW, there must be two churchwardens for each church or PCW (s.1).

If there is a team ministry for a parish containing more than one church or place of worship, the constituting scheme may allow for deputy churchwardens for each, and for the functions of churchwardens to be delegated to them (Mission and Pastoral Measure 2011, schedule 4.3(2)(d)).

9.  Parochial Church Council

Every parish must have a parochial church council (‘PCC’).  The constitution of the PCC is provided in the Church Representation Rules.  The PCC must include a certain number of lay members elected at the annual parish meeting by those enrolled on the electoral roll of the parish.

The Church Representation Rules permit parishioners to make certain variations to the structure of parochial administration.  Such variations may also be authorised under the Measure and Pastoral Measure 2011, but on a temporary, experimental basis only.  There are five particular variations:

(1) If a parish has more than one place of worship, the PCC may be specially structured ‘in such manner as to ensure due representation of the congregation of each church or place [of worship]’ (rule 18).  Thus each congregation will be separately represented on the PCC.

(2) More radically, a separate district church council (‘DCC’) may be constituted for the district of the parish in which a church or place of worship is situated.  A DCC need not be constituted for every district in the parish containing a place of worship, and it is possible to have both a specially structured PCC and one or more DCCs at the same time.

Variations (1) and (2) apply to a parish with more than one place of worship.  The other three variations depend on the benefice rather than the place of worship:

(3) There may be a joint PCC where two or more parishes share a single benefice or where benefices are held in plurality (rule 19).

(4) A team council may be established where two or more parishes are served by the same team ministry (rule 20).

(5) A group council may be established for the parishes served by a group ministry (rule 21).

However, notwithstanding these variations, each individual parish retains its own PCC at all times.

Pastoral Reorganisation: Canon Law, Statute Law and Common Law

‘Where a new church … shall … be built … and where the bishop … patron and incumbent … shall certify to the Commissioners … that such new church, being duly consecrated, should be substituted for the … existing church … the Commissioners [may] by instrument … declare [accordingly] and to transfer the endowments … .’  (Church Building Act 1845)

‘A church shall not be consecrated, until necessary provision [i.e endowment] be made for the priest.’  (Council of London 1102, canon 16)

The case of Sedgwick v Bourne (1920) 2 King’s Bench 267 makes a good starting-point from which to study the legal constitution of a parish.

The Commissioners had issued their order under the Church Building Act (quoted above) to substitute a newly built church as the parish church, in place of the dilapidated old church.  The new church had been duly consecrated by the bishop.  By the same order, the Commissioners transferred all the endowments of the benefice from the old church to the new.

Some years later an energetic new incumbent was appointed to the benefice.  He sued Mr Bourne, one of the parishioners, for unpaid tithes. 

Mr Bourne defended the claim by pleading the mediaeval canon quoted above (in the original Latin, of course).  When the bishop consecrated the new church the endowments of the benefice had not been transferred to it.  They were only transferred after the consecration.

On this basis, Mr Bourne argued that the consecration was invalid, because it violated the mediaeval canon which required the endowments to be transferred before consecration.  If the consecration was invalid, this meant that the new church was not really the parish church.  This in turn meant that the incumbent was not really the incumbent, because he had been inducted into a church that was not a church of the benefice (or indeed any church at all).  He therefore had no right to the benefice tithes.

Mr Bourne’s defence failed.  The Court held that he had misinterpreted the mediaeval canon.  The canon did not require a legal transfer of the endowments prior to consecration.  It merely provided ‘that the bishop must satisfy himself that there will be future maintenance secured’ (p.274).  Moreover, the bishop was the sole judge of the sufficiency of the endowments.  Even if he were mistaken, that would not render the consecration invalid.

However, the essential reason for Mr Bourne’s failure was that the mediaeval canon was simply irrelevant.  The substitution of the new parish church was regulated by the Act of 1845, not by the mediaeval canon.  The provisions of the 1845 Act had been complied with.  Moreover the Act specifically provided that the endowments should be transferred to the new church after consecration, not before.

Sedgwick v Bourne is another example of the confusion which results from failing to distinguish between English ecclesiastical law and canon law.  The ecclesiastical law, contained in the Act of Parliament, provided that a new parish church is constituted as such by order of the Commissioners.  Canon law provided that a new parish church is constituted by episcopal consecration.  English parish churches are governed by English law, not by canon law.  The rule of canon law is therefore legally irrelevant, though it may be of historical interest.

Admittedly the 1845 Act (like its successors) contributed to the confusion by retaining the practice of consecration.  If the parish church is constituted as such by statutory scheme or order, and not by consecration, then what is the point of consecration?  It is legally superfluous.  Perhaps the practice is retained out of respect for its antiquity, or to emphasise the Church of England’s continuity with the mediaeval Church.

English ecclesiastical law comprises unwritten common law as well as statute law.  Before the 19th century most ecclesiastical law was common law.  Much of the 19th century legislation, including the 1845 Act, was introduced to enable what is now called pastoral reorganisation, the creation of new parishes, churches and benefices, and eventually new dioceses.

Phillimore relates that the pastoral legislation was needed ‘to meet the grave and increasing deficiencies in the ministration of … religion in all large towns, the population of the country ever growing and … shifting its centres’ (Ecclesiastical Law, 2nd ed 1895, p.1639).  At first, private or local Acts of Parliament were obtained for new churches in particular places.  The first public general Act regulating pastoral reorganisation was the Church Building Act 1818.  The Church Building Commissioners, later the Ecclesiastical Commissioners, and later still the Church Commissioners, were appointed to administer reorganisation.  By the time Phillimore wrote, another 16 public Acts had been passed.  To date there have apparently been about 40 pastoral statutes (Acts of Parliament and Church Measures).

The law regulating pastoral reorganisation is now mostly consolidated in the Mission and Pastoral Measure 2011.  With 112 sections and 9 schedules, the 2011 Measure is the longest ecclesiastical statute.  However, the unrepealed provisions of the Dioceses, Pastoral and Mission Measure 2007 continue to regulate the reorganisation of dioceses.

Pastoral legislation was, and is, required because common law was virtually powerless to effect pastoral reorganisation.  This also indicates the distinction between ecclesiastical law and canon law.  Canon law empowered the bishop to constitute a new church by consecration.  Common law did not grant any such power to the bishop.

The mediaeval canon law concerning consecration and endowment may well explain the bundle of common law rights that attach to parish churches.  Parishioners enjoy rights to attend divine service and get married and be buried in the churchyard because the property was originally donated for their benefit.  The incumbent’s rights are required to enable him to do his job and earn a living.  The bishop’s right of oversight, and the delicate balance of rights between the patron and the bishop, are required to ensure that the church is used in accordance with its proper purpose, the administration of the divine Word and Sacraments.

However, these common law rights are static in nature.  They are concerned only with the regulation of existing parishes.  Mediaeval canon law transmitted no power to common law to constitute new parishes and parish churches.  Hence the need for pastoral legislation.

The canons of 1603 permitted a bishop effectively to group two or more parishes together, by appointing a single incumbent to hold more than one benefice at the same time (canon 41), but the incumbent was required to maintain an assistant curate (canon 47).  No other powers of pastoral reorganisation were conferred by the 1603 canons.  Nor did the 1603 canons even refer to the bishop’s power to consecrate new churches.

Phillimore confirms that ‘The ecclesiastical arrangement of England [as settled in the middle ages] … remained unalterable, even by the highest authorities of the Church, without the consent of Parliament.  For the parish was a division of civil as well as ecclesiastical importance, and, dating from time immemorial, could only be altered by or under … Act of Parliament’ (p.1638).

‘Dating from time immemorial’ meant that the constitution of a parish was sometimes unclear.  If a common law right was disputed the court might have to determine the boundary of a parish, or whether a particular building was or was not the parish church.

Thus in Braithwaite v Hook (1862) 7 Law Times 254, a local vicar prosecuted the Dean of Chichester for officiating without permission in a churchyard that the vicar claimed belonged to his parish.  However, the court held that the churchyard belonged to Chichester Cathedral, not to the parish.  The churchyard was located within the Cathedral precincts.  The court therefore concluded that it was extra-parochial because:

(1) ‘the precincts containing no lay families would require no parish priest’ and

(2) ‘the Bishop [of Chichester] would not hold it consistent with his dignity to place a parish priest over his own head’,

referring to the Cathedral’s foundation in mediaeval times.

In Line v Harris (1752) 161 English Reports 54 the court acknowledged that a parish church was normally, but not invariably, identified by ‘the administration of sacraments and sepulture’ (p.57).  It concluded on the facts that the disputed place of worship in the case was actually a chapel of ease rather than the parish church. 

Pastoral legislation obviates the need for such forensic inquiries.  Statutory parishes, churches and benefices should be identified from the scheme or order by which they are constituted as such, without the need to study ancient historical evidence.

The Care of Churches

Three functions may be identified in the care of a parish church

(1)  the provision of materials for worship

(2)  the work of repair or maintenance and

(3)  the custody of the building and its contents.

These three functions are now distributed between four parochial officials

(1)  the incumbent (albeit to a very limited extent)

(2)  the churchwardens

(3)  the parochial church council (‘the PCC’) and

(4)  the lay rector (in respect of the chancels of certain parish churches)

Responsibility for the supervision or oversight of the parochial officials’ care of their church is now shared between

(1)  the archdeacon

(2)  the bishop

(3)  the diocesan synod and

(4)  the diocesan advisory committee for the care of churches.

Provision and Maintenance

The Parochial Church Councils (Powers) Measure 1956, s.4(1) provides that the PCC has

(i) ‘The like powers, duties and liabilities as … the [parish] vestry … had with respect to the affairs of the church, except as regards the election of churchwardens and sidesmen and as regards the administration of ecclesiastical charities …

(ii) The like powers, duties and liabilities as … the churchwardens … had with respect to

(a) the financial affairs of the church …

(b) the care, maintenance, preservation and insurance of the fabric of the church and the goods and ornaments thereof …

(iii) The like powers, duties and liabilities … possessed by the church trustees (if any) … appointed under the Compulsory Church Rate Abolition Act 1868.’

The responsibilities of the vestry and churchwardens towards their church existed at common law.  Thus the 1956 Measure did not devise any new responsibilities, it merely transferred common law responsibilities to the PCC.

The wording of s.4(1)(ii) suggests that the churchwardens’ duty, and hence the PCC’s, extends to care, maintenance, preservation and insurance.  This sounds quite onerous.  However, it is questionable whether the common law duty extends as far as the statutory wording suggests.  Common law is unwritten.  It therefore lacks the detailed, exhaustive provision of modern statute law.

The case law indicates that the churchwardens’ duty of care did not extend much beyond the repair of the church, making good any damage as and when it occurred.  It does not hold that the duty extends as far as preservation and insurance.  It was noted in Church Estate Charity, Wandsworth (1871) Law Reports 6 Chancery Appeals 296 that ‘at common law, parishioners are not bound to rebuild a church which has fallen down’ (p.299).  According to one writer, insurance is an allowable expense at common law, but not a necessary one (C.Y Sturge, Points of Church Law, pp.32-3).

As s.4(1)(iii) indicates, the care of the parish church was originally financed by compulsory church rates paid by the parishioners, who constituted the vestry, regardless of religious allegiance.  The church rate was then supposed to be voted by the parishioners in vestry, and then confirmed by the Church court.

These common law duties, and the controversy they once inspired, were discussed in Burder v Veley (1840) 113 English Reports 801.  Mr Veley was a churchwarden.  He and his co-churchwarden summoned the vestry to grant a church rate.

The vestry indignantly refused.  It resolved that ‘so long as the parochial churches are exclusively devoted to the use of the established sect [i.e the Church of England], all expenses of repair shall be defrayed out of the ample revenues of that richly endowed sect or … by the voluntary contributions of those who exclusively enjoy the use of the buildings’ (p.802).

The churchwardens then made, or purported to make, a church rate by themselves.  Having done so, they took legal action against Mr Burder in the Church court to require him to pay their rate.  Mr Burder applied to the secular court for a prohibition of the legal action.

The prohibition was granted.  The secular court held that the churchwardens had no power to make the rate and therefore no right to enforce it in the Church court.  This was ‘a proceeding altogether invalid and a church rate in nothing but the name’ (p.813).

The power to make a church rate belonged at common law to the vestry, not to the churchwardens.  It was agreed that, if no parishioners bothered to attend the vestry meeting, the churchwardens alone constituted the vestry and so could make the rate.  But in this case, of course, a full vestry meeting had been held, and it had declined to make a rate.

The secular court affirmed that the parishioners had a common law duty to repair the parish church, and that the purpose of the church rate was to discharge that duty.  If the vestry refused to levy a church rate, its members were neglecting their legal duty.  The secular court acknowledged that the enforcement of that duty was within the jurisdiction of the Church court.

However, this jurisdiction still did not give the Church authorities the right to impose a church rate.  The only sanctions available to the Church were of a spiritual, not material, nature.  Historically the Church might impose an interdict forbidding divine service in the parish, or might excommunicate the parishioners.  However, as the court truly observed ‘The alteration of men’s opinions and feelings … hav[e] deprived the old remedy of its virtue’ (p.806).

Chief Justice Tindal likened the parishioners’ liability to repair their church to their liability to repair local bridges and highways (p.826).  This suggests that a parish church is a municipal amenity.  However, Burder v Veley obliquely made the point that, by the mid-19th century, the repair of the parish church depended on the voluntary support of the parishioners and others. 

The wish of the vestry in Burder v Veley was eventually realised with the abolition of church rates in 1868.  Only voluntary church rates have been permitted since then.  The common law duty of parishioners to repair their church has not formally been abolished, but the abolition of compulsory church rates has rendered it completely incapable of enforcement.  The only sanction against neglect of the duty is the statutory power, now contained in the Mission and Pastoral Measure 2011, to close the church.

The 1956 Measure does not refer specifically to the provision of materials for worship, but this is also part of the common law duty towards the church.  The whole purpose of repairing the church is to preserve its use as a place of worship.  The materials for worship are mostly specified in Section F of the revised Canons of the Church of England, and include such obvious requirements as a font, communion table, lecturn, pulpit and seats for worshippers. 

The incumbent is responsible for washing and cleaning the communion plate (Canon F3(2)).

The revised Canons require the provision of service registers, including a register of confirmations in the parish (F11(3) and F12(1)).  The Parochial Registers and Records Measure 1978, s.1, provides that a register of baptisms must be provided for every parish church by the PCC.  The Marriage Act 1949, s.7, requires the PCC to provide a register of banns for every church and chapel in the parish in which marriages may be solemnised.

The 1978 Measure imposes stringent standards for the care of parish registers, so long as they remain in parochial custody (see schedule 2).

While the 1956 Measure merely transferred existing common law duties, a more recent Measure, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, imposes additional duties on the churchwardens.

S.4(1) of the 1991 Measure requires the churchwardens to maintain records of all lands and articles appertaining to the church, and of all dealings therewith.  Three documentary records are specified in s.4(1)

(1) the inventory (for goods and chattels)

(2) the terrier (for land) and

(3) the logbook (for dealings with the property, both real and personal).  The logbook must identify the location of all documents relating to dealings with the church and its property.

S.5(1) of the 1991 Measure requires the churchwardens to arrange an inspection of the church’s fabric and contents at least once a year, and deliver an annual ‘fabric report’.  However, the responsibility for acting on information provided by the churchwardens remains with the PCC as a whole.

The Sharing of Church Buildings Act 1969 requires that sharing agreements must provide for the upkeep of buildings shared between the Church of England and other Churches.  Each participating Church ought to contribute towards upkeep of a shared building and also be consulted about this.

However, the administrative responsibility for the management of a shared building remains exclusively with the Church that owns the building (s.3(4)).  Ownership and management of a shared building therefore go together and may not be separated.  However, an agreement may make special provision for the use of movable furniture required for the worship of a participating Church that does not own the shared building.

Parish churches may be involved in sharing agreements under the 1969 Act, but they must remain in the exclusive ownership of the Church of England (s.5).  Thus if a parish church is subject to a sharing agreement this will not affect parochial responsibilities towards it.  However, the parish should be able to call on the other participating Churches for financial support.

The custody of the parish church and its contents, and the liability of the lay rector to repair the chancel of the parish church, are discussed elsewhere in this blog (see the categories ‘Chancel Repair’ and ‘Church Property and Patronage’).

Supervision

The archdeacon retains some of his common law supervisory responsibility for the care of parish churches.  Canon C18(5) provides that he should survey, in person or by deputy, all churches and churchyards in his archdeaconry.  Canon C23(3) requires the rural dean to report any serious defect to the archdeacon.

However, the archdeacon and the rural dean are unlikely to possess the technical knowledge required for an adequate assessment of the fabric of the church.  Thus their responsibilities are now shared with the diocesan advisory committee (‘the DAC’).

The constitution and functions of the DAC are provided by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991.  A DAC must include the archdeacons, two elected members of the diocesan synod, representatives of the local planning authority and ‘national amenity societies’, and persons possessing expert knowledge on various subjects pertaining to the care of churches (schedule 1).  The DAC must have at least 12 members, in addition to the chairman and the archdeacons.

The DAC is required inter alia to give advice and to maintain records relating to the care of churches and churchyards, and to publicise methods of conservation, repair and redevelopment (schedule 2).

The Inspection of Churches Measure 1955, as amended by the 1991 Measure, provides that every diocesan synod must approve a scheme whereby all churches in the diocese are inspected by an architect or qualified surveyor once every 5 years.  The synod must maintain a fund to pay for the costs of inspections.  The architect or surveyor must be approved by the DAC, and must make a report of the inspection (s.1).  The quinquennial inspection must extend to any important movable article in the church (s.1A).

The enforcement of the quinquennial inspection is the archdeacon’s responsibility.  If a church in the archdeaconry has not been inspected for at least 5 years, or has not been inspected to the archdeacon’s satisfaction, he may serve notice on the PCC requiring it to organise an inspection, or permit the church to be inspected in accordance with the diocesan scheme.  If an inspection has still not been arranged 3 months, the archdeacon may, with the bishop’s consent, arrange the inspection himself (s.2).

If the diocesan synod itself neglects to establish an inspection scheme, the bishop is required to do so instead (s.1B).

Under the Parochial Registers and Records Measure 1978, the archdeacon must also arrange a quinquennial inspection, with report, of the parish register books and records, at the PCC’s expense, after consultation with the diocesan record office (s.9).  The bishop must also give directions on the care of books and records (s.11(6)).

 

Jones v Archbishop of Wales

(2013) Church in Wales Provincial Court, unreported.

A Welsh parish held its annual vestry meeting as usual, chaired by the Vicar.  There were 34 candidates for election to the parochial church council (‘the PCC’).  The Constitution of the Church in Wales limits the number of elected PCC members to a maximum of 25:  Chapter 4C, Regulation 13(2).

This meant, of course, that a vote should have been taken to decide which of the 34 candidates should be elected to the PCC.  However, the Vicar, for whatever reason, declined to take a vote.  Instead he simply declared all 34 candidates elected.  He retired shortly afterwards.

The Archbishop, who was also the local diocesan bishop, was informed of the constitutional irregularity.  He decided to replace the 34 PCC members with 15 new PCC members appointed by himself (10 fewer than the permitted maximum of 25).  He did, however, permit the parish electors to nominate the 15 new members to him.  He therefore convened a special vestry meeting.  The special vestry meeting was held, a vote was taken and the 15 candidates with the most votes were nominated to the Archbishop, who then appointed them to the PCC.

Mr Jones was a parishioner (though not one of the 34 PCC members).  He objected that the Archbishop had no right to replace the PCC members in such a fashion.  He accepted that a constitutional irregularity had occurred at the annual vestry meeting (though it did not seem to him a very serious one).  He maintained, however, that two wrongs do not make a right.  If the annual vestry meeting or the Vicar had acted unconstitutionally, that did not entitle the Archbishop to act unconstitutionally as well.

Chapter 9, s.22 of the Constitution of the Church in Wales provides that the Church court

‘shall have power to hear and determine … (b) complaints against Churchwardens and lay [PCC members] in their role as such, and disputes with regard to their election’.

Mr Jones argued that, if the Archbishop was unhappy about the irregularity in the election of the 34 PCC members, he should have taken the matter to the Church court under Chapter 9, s.22 , and awaited the court’s determination.  He had not done this.  Instead he had taken direct action without any reference to the Church court.  Moreover, the action was draconian and therefore required clear authority.  The Archbishop had effectively sacked 34 people.

In justifying his action, the Archbishop relied on another provision of the Constitution: Chapter 4C, Regulation 5.  Regulation 5 provides that

‘If it is brought to the notice of the Diocesan Bishop that:

5.1 the Annual Vestry Meeting has not been held; or

5.2 Churchwardens, [PCC members], or the parochial representatives on the Diocesan Conference or the Deanery Conference have not been elected or appointed

the Bishop may appoint Churchwardens, [PCC members] or parochial representatives as the case may require …’.

The Archbishop’s view was that Regulation 5 was engaged because ‘elected or appointed’ meant ‘elected or appointed in accordance with the constitution’.  Elected PCC members must be elected ‘in accordance with the provisions of the [Constitution]’: Chapter 4C, s.9.  In this case, of course, they had not been.  This meant that they had not really been elected at all.

Mr Jones did not accept this interpretation of Regulation 5.  He argued that Regulation 5 was in the nature of a default power (or ‘lapse’ power).  If a moribund parish cannot be bothered to hold an Annual Vestry Meeting or elect a PCC, then the Archbishop can act in its place.  That was not the case here.  The annual vestry meeting had been held, and the PCC had been elected.  The large number of candidates indicated that the parish was far from being moribund.  There had been an irregularity in the PCC elections, but Regulation 5 did not empower the Archbishop to correct constitutional irregularities.  That was the function of the Church court.

Thus Mr Jones argued that the Archbishop’s interpretation of Regulation 5 took no account of Chapter 9, s.22.  If Regulation 5 permits the bishop to intervene directly to correct an irregular PCC election, then what is the purpose of the jurisdiction conferred on the Church court to determine disputes over PCC elections?  The jurisdiction would be superfluous.

However, the Provincial Court agreed with the Archbishop.  It flatly rejected Mr Jones’s interpretation of Regulation 5:

‘We do not agree that the Regulation is to be construed in such a limited way.  The words of the Regulation contain no such express limitation … Regulation 5 confers remedial powers upon the Diocesan Bishop where a parish has failed to fulfil its obligations, in this case with regard to the election of lay members of the PCC … a purposive construction of Regulation 5 lends no support to the restricted interpretation of the Regulation for which [Mr Jones] contends.’ (para 17).

The 34 PCC members had therefore not been sacked by the Archbishop, because they had not been appointed in the first place:

‘The purported appointment of [the] 34 members of the PCC … was unconstitutional and its effect was that there were no lay members of the PCC able to take part and vote in its decisions without being liable to challenge on the ground that the PCC was not a properly constituted body.’ (para 18).

But what about Chapter 9, s.22 and the jurisdiction of the Church court?  The Provincial Court accepted that ‘it would have been open for the [Archbishop] to bring a case in [the Church] court had he thought fit to do so’ (para 14).  However, the Archbishop was not obliged to take this course, because

‘it was not necessary.  He was empowered by Regulation 5 … to remedy the defective election.  That being so it is unnecessary to consider what the result of an application to the [Church] court under Chapter 9, s.22 might have been’ (para 22).

On this view, the Constitution of the Church in Wales provides not just one remedy for parochial indiscipline, but two alternative remedies.  The Church court and the bishop each has a separate power to remedy an irregular PCC election.

This in turn raises the question of what would happen if the Church court and the bishop were both to exercise their separate powers in respect of the same PCC election.  What if one parishioner complained to the Church court under Chapter 9, s.22, while another asked the bishop to exercise his supposed power under Regulation 5?  Which remedy would prevail over the other, the court’s or the bishop’s?  What would happen if the court and the bishop disagreed over whether there had been an irregularity at all?  The Constitution provides no answer to these questions.  A strange omission, if the Provincial Court’s interpretation is correct.

Having held that the Archbishop possessed the necessary power under Regulation 5, the Provincial Court had no difficulty in concluding that he had acted reasonably in exercising it.  In particular, there was nothing unreasonable about the Archbishop limiting the number of elected PCC members to 15.  Mr Jones’s objection was therefore dismissed.

Mr Jones is the author of this blog.  His account of the case should, of course, be read with this caveat in mind.  The complete text of the Constitution of the Church in Wales may be found on the Church’s internet website.

The Office of Churchwarden: A System of Checks and Balances

Of all ecclesiastical offices, that of churchwarden is probably the hardest to analyse satisfactorily.  The churchwarden seems to be an ecclesiastical jack-of-all-trades, with a multitude of different pastoral, disciplinary, proprietary and financial responsibilities (even if many of these have now been abolished).  The office has a somewhat shapeless appearance, not fitting neatly into any category. 

Some legal commentaries may do no more than provide a laborious catalogue of the ecclesiastical law relating to the appointment and functions of churchwardens.  Such analysis as there is tends to concentrate on the peculiar dual role of churchwardens as

(1) officers of the parish and

(2) officers of the ordinary (principally the bishop, but also the archdeacon and the chancellor).

As was observed in the House of Commons debate on the Churchwardens Measure 2001, ‘churchwardens … are not only a bishop’s appointees, but the people’s choice.  It is a very unusual position.  Churchwardens have two masters … the people and the bishop’ (Official Report, 20th March 2001, column 312).

This is true, but it does not take full account of the churchwarden’s multi-faceted role in ecclesiastical law.  Further analysis is needed to make sense of the accumulation of apparently disparate functions.

It is argued that the office of churchwarden comprises a system of constitutional checks and balances in ecclesiastical governance.  The relationship between the parish and the bishop / ordinary is indeed one aspect of this system, but only one.  The system actually regulates four different relationships, those between:

(1)  churchwarden and churchwarden

(2)  incumbent and parish

(3)  parish and bishop / ordinary / diocesan authority and

(4)  Anglicans and non-Anglicans.

The original purpose of this system is to safeguard the administration of the property and finance of the parish, the Church’s cure of souls therein, and to maintain the correct balance between diocesan authority and parochial autonomy.   More recently it has been extended to protect the rights of non-Anglican parishioners in the parish church and churchyard, and hence to balance the interests of Anglicans and non-Anglicans.

(1)  Churchwarden and Churchwarden

As is well known, there are normally two churchwardens to a parish.  There may be more.  The rule of at least two churchwardens to a parish is not absolute, being subject to existing local custom or special Act of Parliament (Churchwardens Measure 2001, s.1(1)).  It is therefore still possible to have a parish with one churchwarden only.  However, the general rule of at least two churchwardens provides an obvious safeguard against fraud and neglect in the administration of parish property and finance.  Each churchwarden ‘checks and balances’ the other churchwarden.

Halsbury’s Laws suggests that both churchwardens must concur in bringing a legal action and in doing any other official act (3rd edition 1957, Church Assembly Edition, para 369).  In the case of Northwaite v Bennett (1834) 149 English Reports 781, one churchwarden hired a contractor to repair the church, without consulting the other churchwardens.  He was held personally liable for the expense.  The court held that ‘one churchwarden cannot pledge the credit of the others’. 

(2)  Incumbent and Parish

The rule of common law was that both churchwardens were elected by the parishioners.  Canon 89 of 1603 provided that churchwardens should be chosen by the parishioners and the incumbent jointly.  In default of agreement, canon 89 directed that one churchwarden should be elected by the parishioners (the ‘people’s warden’) and one chosen by the incumbent (the ‘vicar’s warden’).

The 2001 Measure largely reverts to the common law.  It provides that, as a general rule, both churchwardens should be elected by the parishioners.  It seems that the incumbent may vote as well, but does not have a special casting vote (s.5(6)).

However, the incumbent has one important power over the choice of churchwardens.  If he feels that there might be ‘serious difficulties’ between himself and a particular would-be churchwarden ‘in the carrying out of their respective functions’, he can rule that only one churchwarden is to be elected by the parishioners.  The incumbent then chooses the second churchwarden, but his choice is limited to one of the other candidates nominated at the parish meeting.  The incumbent’s choice must be announced before the election of the other churchwarden by the parish.

Thus the incumbent does not exactly have the right to veto the election of a particular candidate, but he can effectively suspend the parishioners’ right to vote for a second churchwarden (rather like the bishop’s right to suspend the exercise of the right of presentation to a benefice).

The relationship between incumbent and churchwardens (whether chosen by the incumbent or the parishioners) was discussed by Sir William Scott in Hutchins v Denziloe and Loveland (No.1) (1792) 161 English Reports 514.

In this case the relationship was evidently poor.  The  Rev Hutchins prosecuted his churchwardens (Messrs Denziloe and Loveland) when they sought ‘to obstruct and and prohibit the singing of the parish [choir], accompanied by the organ’, during divine service.  The churchwardens had acted thus because they ‘supposed that, as they paid the organist and managed the [choir], they [and not the incumbent] were to direct when the organ should or should not play’ (p.515).

However, Scott held that the churchwardens could not intervene during divine service in such a manner, even if the incumbent was himself acting unlawfully.  He affirmed that ‘if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary … if private and decent application to the minister … fail … in preventing the repetition of an irregularity’ (p.516). 

He continued: ‘In the service churchwardens have nothing to do but collect the alms at the offertory: and they may refuse the admission of strange preachers [i.e visiting preachers] into the pulpit’, though, ‘when letters of orders are produced [by the visiting preacher], their authority ceases’.

Thus ‘In all other respects, [the churchwarden’s] is an office of observation and complaint, but not one of control, with respect to divine worship’.

Canon B17(2) suggests that the churchwardens remain responsible for providing the bread and wine for holy communion.  Canon E1(4) affirms that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’.

Canon E1(4) provides that churchwardens must ‘use their best endeavours by example and precept to encourage the parishioners in the practice of true religion and to promote unity and peace among them’.  Norman Doe describes this function as ‘quasi-priestly’ (The Legal Framework of the Church of England, Clarendon Press, Oxford, 1996, p.241).  

These authorities indicate that churchwardens assist, and even share, the incumbent’s cure of souls.  It may be said that assisting and sharing the incumbent’s ministry, whether by providing bread and wine, maintaining order or promoting piety and unity,  is the principal duty of churchwardens.  Having said that, however, churchwardens are not merely the incumbent’s pastoral assistants.  It is also part of their office to scrutinise the incumbent’s performance of his official duties, as Sir William Scott said, by means of ‘observation and complaint’.  In this way the churchwardens ‘check and balance’ the incumbent.  They do this both as officers of the parish, which is the object of the cure of souls, and of the bishop, who shares the cure of souls with the incumbent.  The balance is indeed a delicate one.

The churchwardens’ ability to scrutinise the ministry of the incumbent and any assistant clergy is arguably undermined by the incumbent’s chairmanship of the parochial church council (‘the PCC’) and the ex officio membership of the PCC of all other parish clergy (Church Representation Rules, Appendix 2 and rule 14(1)(a)).  The involvement of the clergy with the PCC is also open to the objection that it leaves the clergy with less time for the ministry of Word and Sacrament which is their raison d’etre

The Church of England report Church and State (1918) included a persuasive recommendation (never followed) by Lord Hugh Cecil that PCCs should be exclusively lay committees under the chairmanship of the churchwardens.

Cecil argued that

‘it would be most mischievous to make the incumbent ex officio chairman of [the PCC].  It would be difficult and unseemly for a Council over which a culpable incumbent presided to take any steps by way of complaint … against him … A far better safeguard would be found in emphasising the distinctness of function of the incumbent and council by excluding the incumbent from membership altogether’ (pp.294-6).

(3)  Parish and Ordinary 

The churchwardens’ status as officers of the parish is much less important than it used to be.  Their common law duties towards the parish church and churchyard have been transferred to the PCC: Parochial Church Councils (Powers) Measure 1956, s.4(1)(ii). 

However, the 1956 Measure did not alter the constitutional relationship between the churchwardens and the incumbent, nor the churchwardens’ status as officers of the ordinary.  Also, the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 reversed the trend of modern legislation to some extent by imposing additional duties on the churchwardens, both as officers of the parish and of the ordinary (see s.4 and s.5 of the Measure). 

Canon E1(4) affirms that churchwardens are ex officio officers of the ordinary.  As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church. 

It was held in Fuller v Lane (1825) 162 English Reports 348 that ‘The distribution of seats [in church] rests with the churchwardens as the officers, and subject to the control of, the ordinary.  Neither the ministers nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners’ (p.825).

The 1956 Measure makes clear that ‘Nothing herein contained shall affect … [the churchwardens’] powers, duties and liabilities with respect to visitations’ (s.4(1)(ii)(c).  The churchwardens are required to make written ‘presentments’ to the archdeacon on the state of the parish in advance of the annual visitation (canon G6(1)).   This duty is now shared with the incumbent.  Canon 113 of 1603 provided only that the incumbent might ‘join in the presentments’ if he wished to do so.  The implication of canon 113 is that the incumbent might become involved in the presentments if there was some matter he particularly wished to raise, or if he suspected that the churchwardens themselves were neglecting their duties.

The process of appointing churchwardens alludes to their dual function as officers of both the parish and the ordinary.   The process is now regulated by the 2001 Measure.  The candidates are elected by the parish meeting (s.4(1)).  However, the churchwardens-elect do not take office until they are admitted thereto by the bishop or his representative (s.6(1)).  It is the admission by the ordinary that confers title to the office of churchwarden, not election by the parish.

Elected lay members of the PCC, by contrast, ‘hold office from the conclusion of the annual meeting at which they were elected’ (Church Representation Rules, rule 16(1)).  Being officers of the parish only, they are not required to be admitted to office by the ordinary.  They are automatically admitted when the annual meeting ends.  The PCC is independent of the bishop. 

However, although his admission is required to confer the office, and although the churchwardens are his officers, the bishop / ordinary has no discretion to refuse to admit a validly elected churchwarden if he doubts his fitness for office.  The duty to admit is said to be ‘ministerial’, not discretionary (Phillimore Ecclesiastical Law, 2nd ed, 1895, p.480). 

Thus in R v Sarum (1916) 1 King’s Bench 466 the secular court compelled an understandably reluctant bishop to admit as churchwarden a man who had been convicted of using ‘filthy and indecent language to the rector and in the presence of the rector’s wife’, and in the parish church.  The bishop’s obligation to accept a churchwarden elected by the parish, rather than appoint his own, is an obvious safeguard of parochial autonomy.

As churchwardens are the bishop’s officers they also resign their office to the bishop (2001 Measure, s.7(1)).

(4) Anglicans and Non-Anglicans

In Adey v Theobald (1836) 163 English Reports 157 an exasperated ecclesiastical judge complained of the ‘extraordinary anomaly’ of non-Anglicans officiating as churchwardens.  He noted that ‘There are various duties … by the ecclesiastical law which this person [i.e a non-Anglican churchwarden] could not perform … [for example] the preserving order during divine service’ (p.159). 

Quaker churchwardens were a particular difficulty.  The duty of keeping order in church included (and still includes) ensuring that men remove their hats in church.  At one time, Quakers apparently refused to take their own hats off, even when in church.

However, Sir John Nicholl observed in Palmer v Tijou (1824) 162 English Reports 266 that ‘It is [the churchwardens’] duty to attend church for the very purpose of preserving order … [but] if they are dissenters from the Established Church and from … conscience cannot attend its worship, they are allowed by law to serve the office by sufficient deputy’ (p.267).

The Churchwardens Measure 2001 retains the old rule that churchwardens are elected by all the parishioners, regardless of religion, not just those on the church electoral roll (s.4(2)).

This rule may be anachronistic, as churchwardens no longer have any responsibility for secular local government, only for matters pertaining to the Church of England.  However, parishioners retain common law rights to marry in the parish church and to burial of their remains in the churchyard.  It is therefore thought appropriate for non-Anglican parishioners to retain a limited influence on ecclesiastical administration.  (cf House of Lords Official Report, 30th March 2001, column 543, Bishop of Guildford). 

Nevertheless the judge’s objection in Adey remains valid.  A churchwarden who is not a regular Anglican churchgoer is hardly capable of performing the duties attaching to the office.

The present law is therefore something of a compromise. Non-Anglican parishioners are entitled to vote in the election of churchwardens, but they may only elect a churchwarden who is an Anglican communicant, and enrolled on the church electoral roll (2001 Measure, s.1(3)).   However, in undefined ‘exceptional circumstances’, the bishop may permit the election of a churchwarden who is not a communicant or church elector, but the churchwarden must still be baptised (s.1(4)) (so Quakers are presumably ineligible). 

The Bishop of London may permit a non-communicant to serve as warden of a guild church in the City of London even where the circumstances are not exceptional (s.9(1)).