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).