Ecclesiastical law

Tag: Ecclesiastical Courts Jurisdiction Act 1860

Suspending Public Worship

‘ensure that no church ceases altogether to be used for public worship’ (canon B14A)

A brief and belated comment on the application of ecclesiastical law to the coronavirus situation.

For 3 long, painful months in 2020 (March to June) all churches in England were forced to close as part of a national ‘lockdown’, a regime of draconian restrictions of fundamental human rights, the purpose of which was to arrest, or at least to slow, the spread of the infamous coronavirus. All public worship was forbidden, with scarcely a murmur of protest. The 2 greatest feasts of the Christian year, Easter and Pentecost, could be celebrated only at home or on the internet. Blogging about the finer points of ecclesiastical law seemed futile during this lockdown limbo.

Later in 2020 there was a second, briefer, lockdown. This time there were mild ecclesiastical protests, which were apparently effective. The third, most recent, lockdown has (thus far) spared churches, though this could change at any time. Public worship is still allowed at the time of writing.

However, some churches did not reopen after the easing of lockdown restrictions, and others have closed voluntarily, even though the secular authority does not presently insist on this.

These voluntary church closures are discussed in a paper ‘Suspending Public Worship: Some Legal Questions and Answers’, version 3, 5th January 2021, issued by ‘the House of Bishops Recovery Group’ and published on the Church of England’s website. (Grateful thanks to the Law and Religion blog for drawing attention to this.)

As the paper notes, canon B11 and canon B14 require (public) services of Morning and Evening Prayer, and of Holy Communion, on all Sundays and on certain other important days. These services must be held ‘in at least 1 church in each benefice or … plurality‘.

Thus Sunday services are not required in all places of worship, or even in all parish churches. But the incumbent must still provide such services in at least 1 church within his cure of souls.

However, the Recovery Group paper justifies the voluntary closure of churches on the basis of canon B14A. This canon provides that the requirements of canon B11 and canon B14 may be dispensed with

(a) on an occasional basis, on the authority of the incumbent and the parochial church council (‘PCC’) or

(b) on a regular basis, on the authority of the bishop, and at the request of the incumbent and PCC.

These powers of dispensation should (obviously) be exercised only for ‘good reason’.

The paper acknowledges that the distinction between (1) an occasional basis and (2) a regular basis may not be entirely clear, and suggests that the local archdeacon may be able to answer this question (cf p.3).

However, the paper does not address the critical limitation of both these powers of dispensation conferred by canon B14A and cited above

‘In giving a [dispensation] the person or persons doing so must be satisfied that there is good reason for doing so and shall … ensure that no church ceases altogether to be used for public worship‘.

This makes clear that, although the number of Sunday services may be reduced for a good reason, Sunday worship cannot be discontinued altogether, even on an occasional basis (i.e basis (a)). On its wording, the limitation does not apply only to the bishop’s dispensation from services on a regular basis (basis (b)). It applies to both dispensations. The incumbent must therefore still provide at least 1 Sunday service for the benefit of his flock, no matter how supportive the bishop and the PCC may be.

Canon B14A may be applicable to the coronavirus situation. If fewer clergy and lay ministers are available to take services, and fewer worshippers attend them, this may well be a good reason for reducing the number of services.

On the other hand, fewer Sunday services may encourage a greater concentration of worshippers, thus increasing, not reducing, the risk of transmission of coronavirus. But canon B14A does not, on its wording, authorise the complete cancellation of public worship, even for a limited period.

Churches can be closed under the authority of a church buildings scheme, under the Mission and Pastoral Measure 2011 (s.42). However, a church buildings scheme may be made only by the Church Commissioners, not by the bishop or the incumbent (s.26). Nor can it be made in a hurry. There must be prior consultation, advertisement, consideration of objections (ss.20-30). An appeal against a scheme lies to the Privy Council (s.12).

Moreover the 2011 Measure permits the closure of churches only for redundancy, even though that word is no longer used. The closed church must be ‘not required as a parish church or chapel’ (s.42(1)). There seems to be no provision for temporary closure, or for closure on health and safety grounds.

And the 2011 Measure is careful to provide that ‘where a parish has no church, the bishop shall make [alternative] provision for public worship’ (s.43). So even when the church is lawfully closed for some reason, including a health and safety reason, this does not override the requirements of canons B11 and B14. Church services must still be held somewhere else.

The Recovery Group paper correctly observes that there is no legal right to access a church for private prayer. However, it neglects to mention that there is a common law right to attend Divine service in the parish church. Such a right cannot be suspended without clear legal authority. Good intentions are not enough.

Phillimore relates that, once upon a time, ecclesiastical courts had jurisdiction to exclude parishioners from church, by means of a ‘suspension ab ingressu ecclesiae … from the hearing of Divine service and receiving the Holy Sacrament, which may therefore be called a temporary excommunication’ (Ecclesiastical Law, 2nd edition 1895, p.1072).

This jurisdiction is, of course, long obsolete. But even if it still existed, it could not apply to the coronavirus situation. Suspension ab ingressu ecclesiae was a criminal sanction, awarded for some infringement of the ecclesiastical law (usually brawling in the church or churchyard). It was not a civil health and safety measure. Moreover the purpose of all ecclesiastical sanctions over the laity was metaphysical, pro salute animae, concerned with the soul’s health, not physical health. And suspending public worship contradicts the whole purpose of ecclesiastical law, which is the administration of the Christian religion.

The health and safety concerns are understandable, of course. But if there is no ecclesiastical authority for suspending public worship, recourse should be had to the secular law.

The common law right to worship is discussed in an earlier blogpost, filed under this category.

Objecting to an Ordination

‘if there be any of you who knoweth any impediment, or notable crime, in any of these persons presented to be [ordained], for the which he ought not to be admitted to that office, let him come forth in the name of God, and shew what the crime or impediment is’ (1662 Ordinal).

This invitation is made by the bishop to the congregation, with slight differences of wording, during the ordination services of both priests and deacons, though not of bishops.

Many years ago the author of this blog was present at an ordination service where an objection was made to one of the candidates.  She was apparently the first woman to be ordained in the Anglican Church in Wales.  This was, of course, the reason for the objection.

The Bishop made the ritual invitation quoted above.  Four clergymen in the congregation stood up in their places, but said nothing.  Then two ladies came forward.  The Bishop said to them, somewhat coldly, ‘Please address yourselves to the Chancellor, who is my legal adviser’.  The Chancellor, in wig and gown, was standing nearby.  The ladies read out a prepared statement of objection, in unison.  The Chancellor then read out his own prepared statement rebutting the objection, citing a recent amendment of the Constitution of the Church in Wales to permit the ordination of women.

The two ladies and the four clergymen, together with about 20 supporters, then walked out of the Cathedral, where representatives of the news media were busily recording the dramatic event.  Someone in the congregation shouted a reproach after them (‘May God forgive you, you know not what you do!’).  The service then proceeded as normal, and the woman candidate was ordained.

The ordination service could continue as normal because the objection to the candidate did not amount to an ‘impediment’, for the reason identified by the Chancellor.  The ordination of women was lawful.  However, the 1662 Ordinal goes on to provide that ‘if any great Crime or Impediment be objected, the Bishop shall surcease from Ordering that person, until such time as the party accused shall be found clear of that Crime’.

As well as the provision of the Ordinal for objection to be made during the service, the ordination of priests and deacons was formerly subject to a procedure known as the si quis, which may have resembled the publication of banns of marriage.  Phillimore’s Ecclesiastical Law relates a requirement that

‘proclamation [of a proposed ordination] be thrice made in the parish church where the person who offers himself to be ordained inhabits, in order to know the impediments if any be: which the minister of such parish is to certify to the bishop or his official’ (2nd edition, 1895, p.99).

Thus the older ecclesiastical law provided for no fewer than four public invitations to object to an ordination candidate.  However, the scope for objection is limited to an ‘impediment or notable crime’.  It does not extend to any allegation or complaint that a candidate is unsuitable.

The limited scope for objection was demonstrated in the case of Kensit v Dean and Chapter of St. Paul’s (1905) 2 King’s Bench 249.  It is interesting to compare the facts of this case with the Church in Wales case described earlier.  Mr Kensit was a well-known and dogged opponent of ritualism (the last great ecclesiastical controversy before women priests).    He suspected that the ordination candidates engaged in ritualistic practices.  He came forward in response to the Bishop’s invitation, and stated that he ‘felt it incumbent on him to make very serious objections’ to some of the candidates (p.250). 

However, before Mr Kensit could get around to making his objections, the Bishop cut him short by reading out a legal opinion from the Dean of the Arches to the effect that involvement in ritualistic practices, even if they were illegal, did not constitute an ‘impediment or notable crime’ within the meaning of the Ordinal.

The Bishop then warned Mr Kensit that, unless his objections satisfied the wording of the Ordinal, as interpreted by the Dean of the Arches, he should desist from reading them out and would be prosecuted if he persisted.  Mr Kensit did persist in reading out his objections.  Like the Church in Wales objectors, he then walked out of the Cathedral.  Unlike them, however, he was later convicted under the Ecclesiastical Courts Jurisdiction Act 1860 of ‘unlawfully disturbing divine service’ when the Dean and Chapter complained.  His appeal against conviction was dismissed.

What was Mr Kensit’s unlawful disturbance?  He had not come forward unbidden, but in response to the Bishop’s invitation which was itself required by the Ordinal.  His objection was not frivolous or vexatious: the ordination candidates probably were involved in ritualistic practices that were then illegal. The offence against the 1860 Act is an offence against public order and freedom of worship.  Yet Mr Kensit was convicted, not because of what he did or intended to do, but only because he had misunderstood the Ordinal provision: the candidates’ conduct, even if illegal, did not amount to an ‘impediment or notable crime’.  Mr Kensit was found guilty of a criminal offence by a secular court because he had made an error of ecclesiastical law. 

If Mr Kensit had not misunderstood the rubric, and his objections had amounted to impediments or notable crimes, he could have continued to ‘disturb’ the service and yet not been guilty of an offence.  Instead, as the magistrates who convicted him pointed out, the Bishop would have been guilty of an ecclesiastical offence by continuing with the ordination in the face of Mr Kensit’s objection. 

It is argued that Mr Kensit should not have been convicted on this basis.  He was not ‘disturbing’ the service merely by making his objection, because the objection procedure was an integral part of the service.  It was not the business of a secular criminal court to decide whether or not the objection was valid in ecclesiastical law.  That was for the Bishop to decide.  The true question for the secular court was whether Mr Kensit’s conduct exceeded the licence that he needed in order to make his objection, so as to constitute an unlawful disturbance.

The si quis procedure was abolished in the Church of England under power conferred by the Miscellaneous Provisions Measure 1976, s.1.  It also seems to have been discontinued in the Church in Wales.  The 1662 Ordinal has not exactly been abolished, but it is no longer used for ordinations.  As Chancellor Bursell noted in St. Thomas, Pennywell (1995) Family 50, modern ordination services omit provision for objecting to a candidate.  Instead they merely invite the congregation to ‘assent’ to the ordinations.  This means that objections of the kind described above would constitute an unlawful disturbance if made during a modern ordination service.

The abolition of the objection procedure may be regarded as an attempt by the Church authorities to suppress dissent to their choice of ordination candidates.  However, it was not the purpose of the older ecclesiastical law to provide a democratic opportunity for public dissent and protest.  On the contrary, the objection procedure was intended to assist the bishop, by enabling him to be informed of impediments and crimes of which he might otherwise be unaware. 

It is arguable that a formal procedure for objecting to an ordination is now unnecessary.  Ordination candidates will be subject to criminal record checks, if only to establish that they are suitable to work with children (though such checks are still not expressly required by ecclesiastical law).  Modern communications should make it possible for any serious allegation against a candidate to be notified to the bishop in advance of ordination, without the need for a dramatic intervention during the ceremony itself.

Ecclesiastical and Environmental Jurisdiction

Until the mid-19th century the only public jurisdiction to which churches and churchyards were subject was that of the Church courts.  The 19th century saw the introduction of laws regulating the environment and public health, which were enforceable by secular authorities.  Thus for the first time the Church courts had to share their jurisdiction with the secular authorities.

This division of jurisdiction between Church and state over the same property caused confusion which has still not been fully resolved. 

The confusion first becomes apparent in the case of Lee v Hawtrey (1898) Probate 63.  The case was decided by Dr. Tristram, the last surviving ‘Doctor’ of Doctors’ Commons (and so perhaps reluctant to accept any loss of ecclesiastical jurisdiction), sitting as Chancellor of London.

Two churchwardens were served with a government order requiring them, on sanitary grounds, to remove all human remains buried under the floor of their church, and to rebury them in a cemetery.  The work was to be executed by the churchwardens to the satisfaction of a local sanitary officer.

The churchwardens complied with the order.  They declined to request a faculty from the Church court.  They thought a faculty was unnecessary, as they were acting under the order of the secular authority.  However, Chancellor Tristram disagreed.  He pronounced the churchwardens guilty of an ecclesiastical offence.

This was harsh to the churchwardens.  They had not acted on some private whim, but on receipt of an order-in-council (which, as such, would have been approved by Queen Victoria herself, the Supreme Governor of the Church).  The order was addressed to them, not to the Church court.  Had they declined to obey it they might have been subject to proceedings in the secular court.

The order had been made under s.23 of the Burial Act 1857, an Act passed 40 years earlier.  S.23 conferred power on the Home Secretary to order

‘churchwardens or [others] … hav[ing] the care of any vaults or places of burial [to] prevent … them from becoming or continuing dangerous or injurious to the public health’.

However, the Chancellor maintained that ‘the ultimate care of and control over the … remains buried in the church … is by ecclesiastical law vested, not in the churchwardens, but in this [Church] court’ (p.71).: and (p.71).

This is an accurate statement of the ecclesiastical common law.  But what about s.23 of the 1857 Act?  The Chancellor’s view was that s.23 was not worded with sufficient clarity to ‘transfer … the exclusive jurisdiction which has been vested [by common law] in the ecclesiastical courts for centuries over … churchyards and the bodies buried therein’.  Thus any order under s.23 remained subject to the overriding ecclesiastical jurisdiction.

On this basis, the Chancellor concluded that ‘it was the duty of the churchwardens, on receiving the order … assuming it to be … valid, to bring it to the notice of the Court for its direction by faculty as to the mode in which effect should be given to it’

This interpretation of s.23 is questionable.  If Parliament had intended that an order under s.23 was to be made subject to the faculty jurisdiction it would have made sense to provide that the order be sent to the ecclesiastical court directly, rather than to the churchwardens.

The Chancellor’s implied suggestion that clear words excluding the ecclesiastical jurisdiction were required in the 1857 Act is hard to reconcile with the Court of the Arches’ decision in Phillimore v Machon (1876) 1 Probate Division 481.  That case concerned the prosecution of a layman (Mr Machon) in the ecclesiastical court for a particular offence.

It was admitted in Phillimore v Machon that the ecclesiastical jurisdiction to try the offence had never been expressly abolished by Act of Parliament.  However, the Court of the Arches held that the jurisdiction had been inferentially abolished by a particular Act of Parliament.  This Act had conferred criminal jurisdiction on the secular court.  By conferring jurisdiction to try the offence on the secular court, Parliament had implicitly withdrawn or abolished the jurisdiction of the ecclesiastical court to try the offence.

The decision in Phillimore v Machon supports the conclusion that the 1857 Act, though it did not expressly limit or abolish the ecclesiastical jurisdiction, did so implicitly, by creating the secular jurisdiction over matters of public health.

The Ecclesiastical Courts Jurisdiction Act 1860, which abolished ecclesiastical jurisdiction to punish brawling in church and churchyard, contains an express saving of the ecclesiastical faculty jurisdiction: ‘nothing herein contained shall limit, restrain or abolish the power possessed by the ordinary over the fabric of any church or … churchyard’ (s.7).

The 1860 Act was passed just three years after the Burial Act.  It is arguable that, if Parliament had intended that the Home Secretary’s powers under that Act should be subject to ecclesiastical jurisdiction, it would have included a provision similar to that in the 1860 Act.

For these reasons it is argued that s.23 plainly does empower the Home Secretary to order the removal of human remains from churches and churchyards without a faculty.  It refers to churchwardens in their capacity as officers of the parish and as occupiers at common law of church property in the parish.

Of course, s.23 by no means abolishes all ecclesiastical jurisdiction over churches and churchyards.  It merely asserts a secular responsibility for public health.  The Chancellor complained that the order in this case denied the ecclesiastical court the opportunity to decide ‘whether such wholesale removal is necessary, or whether sanitation might not be effected at much less cost to the parish by concreting the floor of the church, or by a partial removal’ (p.71).

However, it is a strange suggestion that public health is a proper subject of ecclesiastical jurisdiction, or that the ecclesiastical court is better qualified to decide matters of public health than the secular government.

Having asserted his jurisdiction, the Chancellor rather lamely agreed with the Home Secretary that all the remains should be removed.  The proceedings against the churchwardens were therefore dismissed, but they still had to pay costs.

As well as asserting his common law jurisdiction, the Chancellor made dubious use of an earlier case on s.23 of the 1857 Act, Foster v Dodd (1866) Law Reports 1 Queen’s Bench 475, to support his conclusion that the churchwardens’ action was unlawful.

Mr Foster owned land which contained human remains.  The land had been closed for burials some years before.  Mr Foster put timber, bricks and rubbish on his land.  The Home Secretary then obtained an order under s.23 requiring Mr Foster to remove the rubbish etc.  The order did not require the removal of any human remains. 

Mr Foster failed to comply with the order.  The Home Secretary then ordered the churchwardens, including Mr Dodd, to carry out the order.  They entered Mr Foster’s land and did so.  Mr Foster sued them for trespass.

The court (which was, of course, a secular court, not an ecclesiastical court) held that the churchwardens had trespassed because the order was ultra vires the 1857 Act.  The Act applied to ‘places of burial’.  The court decided that Mr Foster’s land was not a place of burial, even though it contained human remains.  It was true that it had once been a place of burial, but it had ceased to be so.

The land had previously been leased to Bridewell Hospital, which used it for the burial of former inmates.  The Bridewell surrendered its lease to the freeholder, who subsequently granted a new lease to Mr Foster.  The court decided that the land had ceased to be a place of burial when the Bridewell surrendered its lease.  By the time of the Home Secretary’s order the land was mere private property.

By thus limiting the meaning of the term ‘place of burial’ in the 1857 Act, the court in Foster was seeking to protect private property from arbitrary state interference.  There are vast areas of land in private ownership which contain human remains.  If private property were brought within the definition of a place of burial the Home Secretary would enjoy considerable power over the owners.  Rights of property were  more highly esteemed in the 19th century than they are today.  (As the court noted, private land containing human remains would still be subject to the common law prohibiting nuisance and indecent inteference with the dead).

The court held that s.23

‘appl[ies] only to vaults and places in the care of persons for the purpose of burial, that is, in the care of persons appropriating them, at the time the Act was passed, to the purpose of burial’ (p.486). 

Thus a distinction was drawn between 

(1) dedicated places of burial, which were subject to s.23, and

(2) mere private property which happened to contain human remains , which was subject only to common law liability (nuisance etc).

The distinctions between Foster v Dodd and Lee v Hawtrey are clear: 

(1)  Foster concerned private property, whereas Lee concerned a church, a public place. 

(2) The churchwardens in Foster had entered on private property which did not belong to them, those in Lee were the lawful occupiers of their church. 

(3) Foster was an action for common law trespass, Lee concerned an alleged ecclesiastical offence. 

(4) The position of the ecclesiastical court in Lee was obviously not comparable to that of Mr Foster.

The Right to Worship

No parish or parishioner has a right to a parish church.  There is no rule of common law that a parish must have a church, or that a parish may not be constituted as such without a church.

S.31(4) of the Mission and Pastoral Measure 2011 follows earlier Measures in providing that a pastoral scheme may create a new parish even though it has no parish church.

However, s.43(1) of the Measure apparently obliges the bishop to provide a place of worship in every parish.  According to s.43(1), where a parish has no church, the bishop must license a building, or part of a building, for public worship.

According to s.43(2), where there is no parish church, the bishop may designate another church, or a building already licensed for worship, as the parish centre of worship (‘PCW’).  The PCW is then deemed to be a parish church.  A parish church may not itself be designated a PCW.  The wording of s.43(2) suggests that a PCW may be designated even if there is a parish church already.

S.41(5)(a) of the 2011 Measure alludes to the common law rights of parishioners in providing that, where a parish has more than one parish church, the parishioners have the same rights of worship in each.  However, it does not define these rights further. 

The rights of parishioners over their church (where there is at least one church) are described by Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976:

‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’. 

The case of Taylor v Timson (1888) 20 Queen’s Bench Division 671 is often cited in support of the right to worship in the parish church.  Master Taylor was a pupil at a ‘reformatory’, evidently a school for delinquent boys.  The boys were not welcome in the parish church.  Mr Timson, a churchwarden, forcibly prevented Taylor from entering the churchyard to attend divine service in the church.  Taylor sued Timson for assault.

The court held Mr Timson liable for assault, because he had no right to prevent Taylor from attending the church.  Taylor was a parishioner and therefore had a right to attend service.

However, the court went further than this.  It held that a churchwarden cannot lawfully prevent a person from attending service, even if he honestly believes that the church is full up, and even if the person is not a parishioner.

The reason for this is that a churchwarden ‘ha[s] no interest in the freehold of the churchyard or the church itself … such an act [of exclusion] … ought, if done at all, to be done by the clergyman’ (p.674).  The churchwarden’s authority is limited to the distribution of seats.  If the seats are all taken, the churchwarden has ‘[no] right to say that people shall not stand in the aisle’ (p.675).  The court declined to speculate what should happen if the church is overcrowded.

This is not a very satisfactory analysis.  First, it is a surprising assertion that only the freeholder of property, acting in person, is entitled to control entry to that property, and that no agent or custodian may do so on his behalf.

A difficulty would arise if the incumbent is not the freeholder of the church.  Presumably the non-delegable power to exclude then vests in the lay rector, but the lay rector may not be available.  This notion in turn conflicts with the judgment in Griffin v Dighton and Davis (1864) 122 English Reports 767, which makes clear that the lay rector’s freehold of the parish church is ‘naked and abstract’ with no right of possession.

It is also difficult to see how the right to allocate seats can, either in principle or practice, be separated from the right to control entry to the church.  If the churchwardens can decide where people should sit, they ought also to decide whether, or where, people may stand.  It is illogical to allow the churchwardens the former right, but deny them the latter.  It also effectively deprives the churchwardens of the ability to maintain order during service.  Someone might decide to stand in the pulpit, or at the altar, thus obstructing the service, yet the churchwardens would be powerless to restrain him.

There is plenty of authority for holding that the churchwardens’ function extends to the maintenance of order during divine service.  The allocation of seats is but one aspect of this function.  The symbol of the churchwarden’s office, the stave, alludes to the maintenance of order.  Canon 19 of 1603 required the churchwardens ‘not [to] suffer any idle persons to abide either in the churchyard or church-porch’.  Canon 28 required them to send non-parishioners back to their own churches.  Canon 60 requires them to repel unauthorised preachers.  Canon E1(4) now provides that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’. 

The parishioner’s common law right to attend service in the parish church is not incompatible with the churchwardens’ duty to maintain order.  The churchwardens are themselves parishioners, and one at least is elected by the parishioners.  For the practical reasons stated, the churchwardens’ duty is really necessary to give effect to the common law right.  Divine service must be orderly, and this requires somebody to keep order.

Of course, it is always possible that the churchwardens may abuse their power, wrongly excluding people they dislike on spurious grounds.  (This may well have been the case in Taylor).  In that event, the excluded parishioner has two possible remedies:

(1) he can complain to the bishop, whose officers the churchwardens are, and /or

(2) he may ask the secular court to enforce his right to worship.

(Master Taylor actually sought an injunction in this case, but the court declined to grant it.) 

However, neither of these remedies denies the churchwardens’ custodianship of the church under the incumbent.

The court in Taylor made the farfetched point that, if the churchwardens prevented a parishioner from attending service, that parishioner might be prosecuted in the ecclesiastical court for his non-attendance.  There was no possibility of such a prosecution by the 1880s, but, if there had been, the parishioner would have an obvious defence, that he presented himself at church but was refused admittance by the court’s own officers.

The case of Cole v Police Constable 443A (1936) 3 All England Reports 107 arose from an altercation in Westminster Abbey.  Mr Cole used to offer his services as a guide to visitors to the Abbey.  The Dean did not approve and gave orders that he be excluded.  Mr Cole persisted in plying his trade.  Police were called, and ejected him.  Mr Cole sued the police for assault.

Although Westminster Abbey is a royal peculiar, not a parish church, Mr Justice Goddard (later Lord Chief Justice Goddard) took advantage of the case to discuss parishioners’ rights over their church.  He doubted the view, suggested in Taylor v Timson, that the right to worship is correlative to the statutory duty to attend service that was imposed by the Acts of Uniformity after the Reformation.  Instead he concluded that

‘the parishioner’s right to attend his parish church must be of far more ancient origin than that [i.e the Acts of Uniformity], and may be described as a common law right.  The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for worship … the right of the parishioner to attend his church … depends, not upon the statute, but upon the wide and common law right’. 

This dictum supports the view that the origin of the parishioners’ common law right is proprietary.  Common law recognises that parishioners have a right of worship in their parish church, because the land and building were first given so that they might do this.  Common law therefore gives effect to the donor’s intention.

In an unpublished dissertation ‘Rights of Passage: The Basis of Lay Entitlement to the Occasional Offices’ (Cardiff University 2002), Jacqueline Humphries concludes that the legal rights of parishioners ‘recall [the Church of England] to its mission to the whole nation’ (p.93).  This may be so, but it would be more accurate to say that these legal rights are concerned, not exactly with the Church of England’s mission to the nation, so much as with its possession of a substantial amount of the nation’s property.

Only a parishioner has a common law right to attend the parish church.  Goddard J held in Cole that no non-parishioner has the right to attend.

Moreover, the right is limited to attendance at acts of public worship in the church.  The Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that ‘no person has a right to enter [the church] when it is not open for divine service’, except with permission of the incumbent and churchwardens.

Thus there is no right to be in the parish church for private prayer.  The regrettable modern practice of locking churches for almost all of the time is not unlawful.

Disorder, or ‘brawling’, in the church and churchyard was formerly punishable by the ecclesiastical courts, which usually imposed a short period of excommunication or suspension ab ingressu ecclesiae on the sinner.  This jurisdiction was abolished by the Ecclesiastical Courts Jurisdiction Act 1860.  Perhaps this encouraged the court in Taylor v Timson to take such a restrictive view of churchwardens’ powers of keeping order in church.  However, the 1860 Act only abolished the ecclesiastical power to punish disorder in church.  It did not abolish the churchwardens’ function of maintaining order. 

Since 1860, offences of ‘riotous, violent or indecent behaviour’ in places of worship and churchyards, and disturbance or molestation of preachers and ordained ministers when they are performing their duties therein, are triable in the magistrates court, which may impose a fine or term of imprisonment of up to two months (s.2 of the 1860 Act).