Ecclesiastical law

Tag: Griffin v Dighton and Davis

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).

The First Modern Faculty Case

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

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

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

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

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

(1) the presumption in favour of change and

(2) the presumption against change.

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

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

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

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

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

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

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

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

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

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

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

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

Conservation v Pastoral Care

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

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

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

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

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

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

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

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

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

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

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

[1] To whom does these buildings belong? and

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

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

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

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

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

Consecration and Control

‘The sentence [of consecration] … is definitive and operates in rem.  In consequence of the sentence, the building and with it the land on which it stands, becomes consecrated land, held to sacred uses and subject to the jurisdiction of this [ecclesiastical] court’.

Deputy Chancellor Newsom in St. John’s, Chelsea (1962) 2 All England Reports 850 at 852.

This is a bold assertion by an ecclesiastical judge, even for the early 1960s.   It suggests that, in a post-modern, secular state, the Church still has power to subject secular property to its own jurisdiction and purposes by a unilateral act of consecration.  Does not the owner of the property have some say in the matter? 

What if the bishop were to sneak round to your house and consecrate your front garden while you are out?  Does that mean you would be unable to sell or use your property except with the permission of the Church?

An ecclesiastical judge would be likely to deflect such a hypothesis with a jest or a sneer: of course no bishop would ever do such a thing!  However, the fact that a bishop could do such a thing indicates the first difficulty with the deputy chancellor’s celebrated dictum.

The case of Sutton v Bowden (1913) 1 Chancery 518 is the most detailed judicial examination of the legal effects of consecration.  It offers some guidance through the errors and confusions that have grown up around this subject.  

Sutton v Bowden concerned a hospital chapel, not a church.  The chapel was consecrated by the local bishop, apparently before anybody realised that consecration precluded non-Anglican worship.  (This was before sharing agreements were allowed.) 

The hospital’s executive or ‘house’ committee had sanctioned the consecration and invited the bishop to perform it.  The consecration was also authorised in writing by the trustees of the hospital site.  The title deeds of the hospital were endorsed with a memorandum of consecration.

Mr Sutton applied to the High Court (not the ecclesiastical court) for a declaration that the chapel could be used for non-Anglican worship, as well as Anglican worship.

The High Court refused a declaration.  It held that ‘the act of consecration was duly performed and the chapel has been effectively consecrated [because] the petition for the consecration was signed by trustees in whom the legal estate [of the property] was vested and the request to consecrate was made by … the house committee’ (p.549).

In consequence of this, the chapel could not be used for non-Anglican worship because ‘The effect of consecration is … to limit … the uses [of the consecrated property] to the ceremonies of the Church of England’.

Thus the High Court agreed with Newsom that consecration operates in rem.  However, it made clear that the consecration was valid (and so capable of operating in rem) because the legal owners of the property had given consent in the proper form.  This means that, absent statutory authority, consecration depends for its validity on the consent of the landowner, and not on the authority of the bishop who performs the act of consecration.

The chapel in Sutton v Bowden was private or trust property.  Places of public worship, by contrast, are now designated as such by statutory authority.  Statutory authority will override any requirement of consent by the landowner.

The statutory authority for a new church is now contained in s.41 of the Mission and Pastoral Measure 2011.  S.41(1) provides that a pastoral scheme may

(c) provide for a new church and for it become after …

[1] approval by the bishop, after consultation with the diocesan advisory committee and the pastoral committee, as suitable to be a parish church and

[2] its consecration

the parish church …

S.41(2) provides that ‘The designation by a pastoral scheme as a parish church of a building which … is not [already] a parish church shall not take effect unless and until it has been

[1] approved by the bishop, after consultation [as above] as suitable to be a parish church and …

[2] consecrated.’

Thus consecration can no longer constitute a parish church as such.  The authority of a statutory scheme is required.  The statutory scheme, not the consecration, creates the new parish church.  Consecration is merely a preliminary to the making of the statutory scheme. 

Indeed the provisions of s.41 suggest that the consecration of places of public worship is legally rather superfluous.  If churches are constituted by statutory authority and not by consecration, then what is the point of consecration?  Perhaps the practice is retained out of respect for its antiquity.

Sutton v Bowden must also cast doubt on the suggestion that consecration of a private or institutional chapel, even if done with the owner’s consent and in the proper legal form, confers ecclesiastical jurisdiction over the land.  As mentioned, the case was decided by the High Court, without any suggestion that the ecclesiastical court had jurisdiction.  

There is no doubt that common law recognises an ecclesiastical jurisdiction over churches (i.e places of public, as distinct from private, worship)  and churchyards, but it does not follow that consecration is the basis of the common law jurisdiction.

In the case of Griffin v Dighton and Davis (1864) 122 English Reports 767, Lord Chief Justice Cockburn held that ‘Churches in their origin were dedicated by those who erected them and gave the sites on which they were built for the purposes of religion and the worship of God’ (p.771).  He made no mention of consecration.  Indeed his dictum supports the view that it is the act of the donor in giving the property, and not the consecration of the property, that constitutes ecclesiastical property as such. 

Cockburn CJ further held that churches thus dedicated by their donors were ‘subject to the control of the ordinary’.  This further indicates that it is dedication by the donor, not consecration by the bishop, that confers ecclesiastical jurisdiction over property.  Like the visitor of a secular foundation, the ordinary’s jurisdiction is to ensure that the donor’s intentions concerning the property are being observed, and that the property is being used for its proper purposes.

Phillimore explains the mediaeval process of consecration thus:

‘After a new church is erected, it may not be consecrated without a competent endowment … Which endowment was commonly made, by an allotment of manse and glebe by the lord of the manor, who thereby became patron of the church.  Other persons … often contributed small portions of ground’ (Ecclesiastical Law, 2nd edition 1895, p.1388).

This account makes clear that, in canon law, consecration certified not only the church that was consecrated, but also the endowment that was given to support it.  To identify ecclesiastical jurisdiction only with consecrated land is therefore somewhat lopsided.  The ordinary must control the unconsecrated endowment as well as the consecrated church building. 

It is true, of course, that consecrated and unconsecrated Church property have different immediate uses.  The church building is for worship, while endowment property serves the ancillary purpose of maintaining the incumbent.  This may justify different regimes of control of church and endowment.  But church and endowment are both equally the property of the Church, donated for the purposes of the Church, and therefore subject to ecclesiastical jurisdiction.

If Newsom’s dictum is taken literally, it carries the absurd implication that unconsecrated Church property is not subject to ecclesiastical jurisdiction.  Yet Phillimore observed that ‘Properly speaking a faculty or licence should be obtained from the ordinary before alterations of importance are made in the parsonage-house or buildings’ (p.1263).  Parsonage property is, of course, unconsecrated.

The Enforcement of Chancel Repair

The Church of England’s Legal Advisory Commission has argued that the power conferred on the parochial church council (PCC) by the Chancel Repairs Act 1932, to enforce a lay rector’s liability to repair the chancel, ‘represents an asset of the PCC’, which the PCC is required to ‘protect and preserve’ (Opinion, October 2007).

The word ‘asset’ may suggest that the PCC’s ability to enforce the rectorial liability is a species of property, similar to a right of way or other easement over land.  It constitutes a ‘dominant’ right over the lay rector’s ‘servient’ property. 

However, the PCC has no legal estate in the chancel, nor in any other part of the parish church.  Indeed its power to acquire an interest in any land is limited (PCC (Powers) Measure 1956, ss.5 and 6).  It is therefore not in the same position as the owner of an easement.

It is not very meaningful to speak of the chancel repair liability as an asset of the PCC, when the PCC has no legal estate in the chancel.  It is true that the case of St. Edmundsbury v Clark (No.2) 3 All England Reports 902 held that the PCC has a right of way to the church and churchyard.  The PCC must also have a right of possession or occupation (as distinct from ownership) of the church, including the chancel, sufficient to discharge its legal responsibilities thereto.

However, as St. Edmundsbury makes clear, these rights are limited to the access necessary to the discharge of the PCC’s own legal responsibilities towards the church.  The 1932 Act, by contrast, is concerned with the discharge of the lay rector’s responsibility to the church, not the PCC’s.

If the lay rector’s liability can be said to constitute an ‘asset’, that asset belongs to the parish, or even to the Church of England generally, but not to the PCC.  Parish churches exist ‘for the purposes of religion and the worship of God’ (Griffin v Dighton and Davies (1864) 122 English Reports 767 at 771).  The lay rector’s liability exists to serve these purposes, and the Church is responsible for administering them.

It is true, however, that parish and Church have no legal personality, and that the lay rector’s liability can only be enforced by the PCC, or by the churchwardens if there is no PCC (1932 Act, s.4(1)).  Thus, in exercising its rights under the 1932 Act, the PCC acts on behalf of the parish/Church.  It acts as their agent or representative, but not as trustee of any property.

So what is the PCC’s duty towards the parish/Church?  The 1932 Act does not impose any obligation on the PCC.  It provides only that the PCC ‘may’ act to enforce the rectorial liability.  There is nothing in the wording of the Act to suggest that the PCC must do so.

PCCs are now constituted under the Parochial Church Councils (Powers) Measure 1956.  S.4 of the 1956 Measure provides that, subject to certain exceptions, the PCC has ‘the like powers, duties and liabilities’ that formerly belonged to the vestry and the churchwardens.

Before the 1932 Act, legal proceedings against a lay rector could be taken only in the ecclesiastical court.  The churchwardens, as officers of the ecclesiastical court and of the parish, might bring the proceedings.  Such proceedings were of limited effectiveness, because the ecclesiastical court could only impose spiritual sanctions against a defaulting lay rector.  It could ‘admonish’ the lay rector to do his duty, and excommunicate him for neglecting it.  However, it lacked the powers of enforcement available to the secular civil court (bailiffs etc).

Thus the purpose of the 1932 Act was to enable the lay rector’s liability to be enforced in the secular civil court.  However, though it provided for enforcement in the secular court, the 1932 Act also abolished proceedings in the ecclesiastical court for chancel repair (s.1).

Annual visitations are not affected by this latter provision.  A complaint can still be laid against a defaulting lay rector before the visiting archdeacon.  Such a complaint might draw attention to the existence of the rectorial liability, but could not per se lead to proceedings under the 1932 Act.

Moreover, one of the exceptions to the transfer of responsibilities in s.4 of the 1956 Measure relates to the ‘powers, duties and liabilities with respect to visitations’.  The churchwardens continue to act in visitations, not the PCC.  In consequence, any ‘duty’ to denounce a defaulting lay rector in a visitation belongs to the churchwardens, not to the PCC.

Thus any duty to take steps to enforce the rectorial liability only ever existed in ecclesiastical law, and belonged only to the churchwardens.  That duty (if it existed) was abolished by the 1932 Act.  As mentioned, the 1932 Act does not replace the churchwardens’ duty with a new duty on the PCC to enforce the rectorial liability.

S.7 of the 1956 Measure confers certain ‘miscellaneous powers’ on PCCs, in addition to the responsibilities inherited from the churchwardens and the vestry.  This includes ‘Power to frame an annual budget of moneys required for … the work of the Church in the parish, and to take such steps as they think necessary for the raising collecting and allocating of such moneys’ (s.7(1)).

This wording does not impose any duty to take action under the 1932 Act.  It refers to the usual fundraising activities undertaken by any charitable organisation.  Even if it could be said to include enforcement of the lay rector’s liability, the wording makes clear that this is a matter for the PCC’s discretion.  It does not impose a duty or liability, any more than does the 1932 Act.

There is case law which suggests that if a PCC incurs a liability without proper authority, the individual PCC members involved will be personally responsible for this (see for example Fell v Official Trustee (1898) 2 Chancery 44).  The courts will not assist churchwardens or PCC members who, over-anxious to fulfill their duties to take care of the church, exceed their authority.  However, there is a considerable difference between incurring a liability without authority and neglecting to take steps to enforce the liability of a third party.

Nor can it be argued that the secular court has some a priori power to require the PCC to take action under the 1932 Act.  Not only does the wording of the 1932 Act contradict this argument, the 1932 Act  itself would hardly have been necessary if such a power existed.  The 1932 Act was passed precisely because the secular court had no power to enforce ecclesiastical liabilities towards the parish church.

It must therefore be concluded that the PCC has no ‘duty’ cognisable in any secular court to exercise its power under the 1932 Act. 

This does not mean that nothing can be done about a PCC which neglects to exercise this power.  Just as the ecclesiastical courts used to impose sanctions against defaulting ecclesiastical officeholders, so modern ecclesiastical law provides sanctions, albeit of a rather different character.

Thus the Synodical Government Measure 1969 enables parishioners (or rather, the parish electors) to vote in new PCC members.  If the parishioners decline to take action, and the church falls into disrepair as a result, the Church authorities have wide powers under the pastoral legislation (now contained in the Mission and Pastoral Measure 2011) to dissolve or restructure the parish, and to close the church building.  As Chancellor Newsom observed, ‘the primary remedy for a badly neglected church is to make it redundant, since its parishioners have shown by their neglect that they have not cared to look after it’ (The Faculty Jurisdiction, 2nd edition, Sweet & Maxwell, London, 1993, p.98).