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Tag: Mission and Pastoral Measure 2011

Celebrating the Lord’s Day: The Ecclesiastical Regulation of Sunday

‘The Lord’s Day … is ever to be celebrated as a weekly memorial of our Lord’s Resurrection … particularly by attendance at Divine Service …’ (canon B6(1))

This blogpost is intended merely to provide a coherent narrative of the subject, rather than to say anything new. It therefore makes points that are discussed in more detail elsewhere on the blog.

The restrictions on Divine Service imposed as a result of the coronavirus situation are not discussed here. The legal basis of such restrictions – if they have one – is secular, not ecclesiastical.

If the restrictions are gradually being relaxed, now is arguably an appropriate time to pay renewed attention to the Sunday ecclesiastical laws.

Church Attendance

In the case of Jarrett v Steele (1820) 161 English Reports 1290, Sir John Nicholl, Dean of the Arches, held that ‘the possession of the [parish] church is in the [incumbent] and the churchwardens …’. In a later case he asserted the incumbent’s priority over the churchwardens. The incumbent ‘has, in the first instance, the right to possession of the key [to the church], and the churchwardens have only the custody of the church under him’ (Lee v Matthews (1830) 162 English Reports 1119 at p.1120).

Parishioners have rights over the church too. In Cole v Police Constable 443A (1936) 3 All England Reports 107, Mr Justice Goddard (later Lord Chief Justice Goddard) held that ‘the parishioner’s right to attend his parish church … 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 [public] worship …’. However, Jarrett v Steele held that ‘no person has a right to enter [church] when it is not open for Divine Service’, e.g for private prayer.

Thus all legal rights over the parish church serve the same purpose – the celebration of Divine Service. The rights of the incumbent and the churchwardens give effect to the parishioners’ right.

The churchwardens are responsible for managing church attendance. Their duty is ‘[to] maintain order and decency … during the time of Divine Service’ (canon E1). The stave, symbol of the churchwarden’s office, alludes to this function of keeping order. Churchwardens are assisted in their task by the parish sidesmen (canon E2).

Thus the churchwardens arrange seating (canon F7(1)). Parishioners, as is their right, enjoy priority over non-parishioners, who attend only on licence (cf canon F8(3)). Legal rights to occupy particular pews are still possible. The incumbent decides who gets to sit in the chancel.

If there is serious disorder, the churchwardens may require assistance from the secular law. ‘Riotous, violent or indecent behaviour’ in church is a criminal offence (Ecclesiastical Courts Jurisdiction Act 1860, s.2). The bishop has power (virtually never used) to exclude ‘notorious offenders’ from Holy Communion (canon B16). However, the exclusion of a parishioner from Divine Service will require a secular injunction, because such exclusion deprives him of a legal right.

Divine Service is, of course, the responsibility of the incumbent (cf canon C24). Just as the churchwardens are assisted by sidesmen, so the incumbent may be assisted by other clergy (e.g an assistant curate) and by licensed lay ministers. If the benefice is part of a team or group ministry, the responsibility will be shared with the other ministers of the team or group (Mission and Pastoral Measure 2011, ss.34 and 35).

The churchwardens have no direct responsibility for Divine Service, even if the incumbent fails in his. Theirs is ‘an office of observation and complaint, but not of control, with respect to Divine Worship … if the minister introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary’ [i.e the bishop] (Hutchins v Denziloe and Loveland (No 1) (1792) 161 English Reports 514, at p.516).

Only if there is a vacancy in the benefice, with no incumbent or licensed priest-in-charge, may the churchwardens acquire responsibility for the provision of Divine Service, and even this depends on the bishop’s direction or request (cf Mission and Pastoral Measure 2011, s.86(2): Dale’s Law of the Parish Church (7th edition 1998, p.73).

In discharging their respective functions, the incumbent and churchwardens must have ‘due regard’ to the ‘safeguarding’ guidance issued by the House of Bishops (Safeguarding and Clergy Discipline Measure 2016, s.5(1)).

Nowadays the time of Divine Service is invariably advertised on a notice placed near the church door (and online). However, a bell is the traditional mode of announcement. (In the old days many parishioners might be unable to read a notice.) The church should therefore have ‘at least 1 bell to ring people to Divine Service’ (canon F8). The bell usually starts ringing 5 or 10 minutes before Divine Service begins. All other bellringing is a matter for the incumbent’s licence. Canon F8 confirms that ‘No bell … shall be rung contrary to the direction of the [incumbent]’.

Divine Service

Provision. Canon B11 and canon B14 require services of Morning and Evening Prayer, and of Holy Communion, on all Sundays. Service must be held ‘in at least 1 church in each benefice or … plurality [of benefices]’. These requirements may be dispensed with for ‘good reason’, but Sunday worship must not be discontinued altogether, even on an occasional basis. The incumbent must provide at least 1 Sunday service.

The revised canons make similar provision for Divine Service in the cathedral, which is the parish church of the diocese (canons B10 and B13). The Cathedrals Measure 2021 empowers the chapter to ‘order the worship of the cathedral’ (s.11(1)(a)). The dean must ‘ensure that Divine Service is duly performed’ (s.12(2)(a)).

Divine Service in a shared building will be regulated by the sharing agreement, which agreement ‘may dispense, to such extent as may be necessary, with the requirement to hold certain [Sunday] services …’ (Sharing of Church Buildings Act 1969, s.4(2)).

Divine Service in an extra-parochial place, such as a college or hospital, will be regulated by the bishop’s licence to the chaplain thereof (Extra Parochial Ministry Measure 1967, s.2).

In a mission initiative, Divine Service will be determined by the bishop’s order constituting the mission (Mission and Pastoral Measure 2011, s.80(13)).

Sunday Communion in private chapels (as distinct from extra-parochial places) is discouraged, ‘so that the residents in the said house may resort to their parish church and there attend Divine Service’ (canon B41(1)).

Form. Church of England services are authorised by canon B1. Canon B1 services comprise

(1) Prayer Book services (which date from 1662) and

(2) modern services.

In view of his responsibility for Divine Service, the incumbent is expected ‘to have a good understanding of the forms of service used …’ (canon B1(2)). However, the incumbent’s choice of service requires the agreement of the parochial church council (‘the PCC’) (canon B3(1)).

Only canon B1 services may be used, subject to 2 very limited exceptions

(1) Canon B5 gives the incumbent discretion to make ‘variations which are not of substantial importance in any [canon B1 service]’. And the incumbent can introduce liturgical material of his own ‘on occasions for which no provision is made under [canon B1]’.

There is unlikely to be much scope for such material in ordinary Sunday worship. And the discretion conferred by canon B5 is still subject to the ‘pastoral guidance, advice or directions’ of the bishop.

(2) If an ecumenical scheme is in force, a special ecumenical service may be held (canon B43(8)).

Language. The normal language of Divine Service is English, but the House of Bishops may approve non-English translations of canon B1 services (canon B42). Use of such a translation requires the permission of the local bishop. Divine Service may be performed in sign language. Latin services are permitted in universities, public schools and ‘such other places of religious and sound learning as custom allows’.

Vesture. The incumbent and other officiating ministers are generally required to be robed for Divine Service, though the law on this important matter has recently been – rather clumsily – amended.

Canon B8, which is entitled ‘Of the vesture of ordained and [other] authorised ministers’ (so presumably lay ministers as well), now provides that the usual liturgical vesture is

(1) surplice or alb and

(2) scarf or stole.

The cassock is no longer mentioned, but is presumably implied when the surplice is worn. (At any rate a surplice looks rather odd without a cassock beneath it.) Nor does canon B8 stipulate that the stole may be worn only by ordained ministers, not lay ministers. Cassock and alb are now often combined in a single vestment.

‘When a stole is worn other customary vestments may be added’, i.e the catholic eucharistic vestments for Holy Communion, or a cope for special occasions.

However, canon B8 goes on to provide that ‘some other form of dress’ – presumably a reference to ordinary clothes – is possible, but only if the incumbent ‘has ascertained [i.e made certain] by consultation with the PCC that [such] other form of dress will be acceptable’. Even if so acceptable, ordinary clothes must still be ‘suitable to [the] office … a sign and mark of … holy calling and ministry, as well to others as to [regular worshippers]’ (canon C27).

A change of robes (e.g assuming or discontinuing eucharistic vestments) likewise requires the consent of the PCC.

Any disputes over the incumbent’s sartorial appearance must be referred to the bishop ‘whose direction shall be obeyed’.

Ornaments. Canon B8 is the modern replacement of 1 half of the famous Ornaments Rubric in the Book of Common Prayer, ‘the ornaments of the minister’. The other half – ‘ornaments of the church’ – are not regulated by the revised canons. Thus cross and lights on the altar, colourful altar frontals, hangings, flowers and suchlike will be regulated, if at all, by the faculty jurisdiction of the ecclesiastical courts.

Ceremonial. The revised canons are also silent about ceremonies, i.e ceremonial acts performed during Divine Service (e.g processions, ‘smells and bells’, elevation of the consecrated Bread and Wine, the Sign of the Cross). It is therefore argued that such actions are at the discretion of the incumbent. The incumbent’s discretion will extend to the appointment of altar-servers or acolytes to assist with ceremonies.

However, the incumbent’s freedom will be limited by any directions or rubrics contained in the form of service that is being used, and by the requirement that all worship must be ‘reverent and seemly’ (cf canon B5(3)).

Music, like ceremonies, is largely a matter for the incumbent’s discretion, as regulated by canon B20. The incumbent must ‘pay due heed to his [organist’s] advice’, but always retains ‘the final responsibility and decision’.

The incumbent must ensure that all musical items ‘are appropriate, both the words and the music, to the solemn act of worship … and to banish all irreverence’. The chosen music must also be appropriate ‘to the congregation‘. This may refer to the culture or churchmanship of the particular parish.

However, there seems to be no requirement for a parish church to have any music at all. Neither the organ or any musical instrument is identified as one of the ‘things appertaining to churches’ prescribed by section F of the revised canons.

The musical position of cathedrals is very different. In St John’s, Margate (1794) 161 English Reports 524, Sir William Scott held that ‘In cathedral churches [organs] would … be deemed necessary and the ordinary [bishop-visitor] may compel the dean and chapter to erect an organ …’ (p.525). All cathedrals are now required to ‘provide for the appointment of a person having the function of supervising music …’ (Cathedrals Measure 2021, s.5(1)(g)), aka the choirmaster.

Posture. Modern ecclesiastical law can do little to regulate the conduct of lay worshippers, other than by way of teaching or exhortation (like canon B6(1), quoted above). However, canon B9(2) provides that worshippers ‘shall have regard to the rubrics of the service and locally established custom in the matter of posture‘, but no longer insists upon the neglected practices of

(1) kneeling and

(2) ‘giving due reverence to the Name of the Lord Jesus’.

Publication. The incumbent must announce any important Holy Days that will fall during the coming week (e.g a major saint’s day, Ash Wednesday, Ascension Day) (canon B7). The preparation of a new electoral roll must be announced (Church Representation Rules 6(4)).

Banns of marriage must also be published at the principal Sunday service, using a prescribed form of words. They must be published from a special register, ‘and not from loose papers’ (Marriage Act 1949, s.7(3)). Banns may normally be published only by an ordained minister, but in certain limited cases a layperson may do so (s.9).

It is argued that the incumbent is bound to publish a pastoral letter or other communication to the parishioners from the bishop, who is ‘the chief pastor of all that are within his diocese’ (canon C18(1))

All publications not required by law will be at the incumbent’s discretion.

Collections are generally taken at Sunday services. The incumbent and PCC now ‘jointly … determine the objects to which all moneys … collected in church shall be allocated’ (PCC (Powers) Measure 1956, s.7(iv)).

Registration. The church must keep a register (possibly in electronic form), in which ‘shall be recorded every service of public worship, together with the name of the officiating minister and of the preacher … the number of communicants [at Holy Communion], and the amount of any …. collections and, if desired, notes of significant events’ (canon F12). It is not clear who does the recording, the incumbent and / or the churchwardens.

However, the register of banns must be signed by ‘the officiating clergyman, or by some person under his direction’ (1949 Act, s.7(3)).

Word and Sacrament

Divine Service is centred around

(1) the Bible and

(2) the Holy Communion, or Eucharist.

Roman Catholic law aptly describes Bible and Eucharist as the ‘twofold table’. Word and Sacrament. The written Word and the Word made flesh.

Ecclesiastical law regulates 4 aspects of the ministry of the Word, albeit rather perfunctorily. However, closer study of these 4 aspects might improve the quality of Divine Service.

(1) Bible. Canon F9 requires the provision of ‘a Bible’, or rather 2 Bibles: 1 for the incumbent and another ‘to be kept in the pulpit for the use of the preacher’. The incumbent’s Bible must include the Apocrypha, and must be ‘of large size’.

Apart from this, the revised canons seem to make no provision for the use of the Bible in Divine Service. In particular there is no provision for the approval of particular translations or versions of the Bible, so presumably any version will be acceptable (unless it contravenes the requirement of reverence) and a matter for the incumbent’s discretion. The Prayer Book (Versions of the Bible) Measure 1965 permits the use of different versions of the Bible in certain circumstances, but this applies only to Prayer Book services, not modern services.

(2) Sermon. Canon B18(1) provides that at least 1 sermon must be preached on Sunday, ‘except for some reasonable cause approved by the bishop’. The liturgical publication Common Worship suggests excitingly that ‘the sermon [can] include … the use of drama, interviews, discussion, audio-visuals’.

Licensed lay ministers may now preach, as well as clergy (canon E4 and E7). Canon B18(2) also provides that ‘another person’ besides an ordained or lay minister may preach at the invitation of the incumbent, though the permission of the bishop is required, either specifically or in accordance with diocesan regulations.

(3) Sunday School. The incumbent is required to provide a Sunday school for ‘children and young people’ (canon B26), i.e persons too young to profit from the sermon. The incumbent may teach the children personally, or appoint ‘some godly and competent persons’ (i.e Sunday school teachers) to do so.

The Sunday school curriculum must be based on

(a) the Bible

(b) the Book of Common Prayer and

(c) ‘especially’ the Church Catechism.

(4) Assisted Self-Examination. As canon B29(1) notes, Divine Service includes ‘the General Confessions of the congregation and … the Absolutions pronounced by the priest’.

The incumbent is supposed to teach parishioners ‘from time to time’ to prepare themselves to receive Holy Communion, ‘with such preparation as is required by the Book of Common Prayer’ (canon B15(2)).

The Prayer Book sternly exhorts the faithful ‘to search and examine your own consciences … to bewail your own sinfulness, and to confess yourselves to Almighty God, with full purpose of amendment of life …’.

General public confession and absolution following personal self-examination may not be sufficient in a particular case. Canon B29(2) therefore allows that ‘If … any [person] … requires further comfort or counsel, let him come to some discreet and learned minister of God’s Word; that by the ministry of God’s Holy Word he may receive the benefit of absolution, together with ghostly [i.e spiritual] counsel and advice, to the quieting of his conscience …’.

This wording suggests that private confession and absolution are part of the ministry of the Word rather than the Sacrament. An optional form of preparation for the Sacrament, but not a sacrament per se. This is, of course, consistent with Article 25, which denies that ‘penance’ is a sacrament of the Gospel.

Holy Communion begins with the uncovering of the altar or ‘holy table’ (canon F2). The altar is normally covered with a coverlet of ‘silk or other decent stuff’. This is replaced by ‘a fair white linen cloth’ for Holy Communion.

The churchwardens are responsible for providing the bread and wine (canon B17). The bread may be leavened or unleavened. The wine must be ‘fermented juice of the grape’. As the Legal Advisory Commission recently noted, this means that it must have some alcoholic content.

Only an episcopally ordained priest can officiate at Holy Communion in a canon B1 service (canon B12(1)). It is possible for another minister to officiate at a special ecumenical service, but the Anglican faithful must be warned of the lack of episcopal ordination (canon B43(11)).

However, laypeople assist at Holy Communion in various ways. They may read the epistle and the Gospel. As mentioned, a layperson may preach. Licensed laypeople usually assist with the distribution of the Sacrament (canon B12(3)).

Holy Communion comprises 2 distinct rites

(1) the Eucharist, the prayer of thanksgiving in which the bread and wine are consecrated and

(2) the Communion itself, the consumption or ‘reception’ of the consecrated elements.

The priest is the link between these 2 rites. Having celebrated the Eucharist, he must communicate himself (canon B12(2)).

The revised canons do not in terms require Holy Communion to be administered under both kinds. However, canon B17 obliquely refers to this by providing for ‘a sufficient quantity of bread and of wine for the number of communicants that shall … receive the same’ (canon B17(1)).

All Holy Communion services, from the first Book of Common Prayer in 1549 onwards, have required Communion in both kinds for all communicants. They are supported by Article 30, which invokes ‘Christ’s ordinance and commandment’.

The ‘necessitie’ provision in the Sacrament Act 1547 (at s.8) remains on the statute book, and provides a convenient, 500-year-old figleaf of authority for the present practice of withholding the Communion Cup. However, we have argued elsewhere that

(1) this provision applied only to the liturgy in use in 1547, and, though not expressly repealed, was nevertheless impliedly repealed by the subsequent Acts of Uniformity and / or

(2) even if still applicable, it does not apply to the coronavirus situation. (Parliament in 1547 would have described that as a ‘plague’, not a ‘necessitie’.)

The incumbent is responsible for washing the Communion vessels after the celebration (canon F3(2)). However, the revised canons make no provision for the disposal of unconsumed consecrated bread and wine. Reservation of the Sacrament, in an aumbry or tabernacle, though nowadays a near-universal practice and no longer controversial, remains a matter for the faculty jurisdiction.

Baptism, like Holy Communion, should also be administered on Sunday, ‘at, or immediately after, public worship, when the most number of people come together …’ (canon B21). Private baptism, like private Communion, is discouraged, ‘except for grave cause and necessity’ (canon B22(9)). The font is uncovered for baptism, just as the altar is uncovered for Holy Communion (cf canon F1(2)). The baptism must be registered afterwards (cf canon B39(1)).

Baptism founds the right to be admitted to Holy Communion. This right is now regulated by canon B15A. Communicants are expected to ratify their baptismal promises by episcopal confirmation, or at least be ‘ready and desirous’ to be confirmed. The bishop may permit young children to receive Holy Communion, but only if satisfied of ‘adequate provision for [their] preparation and continuing nurture in the Christian life’, a reference to Sunday School (Regulations of 2006). Practising Christians from non-episcopal Churches are admitted to Holy Communion.

The common law right to attend Divine Service is not explicitly linked to baptism in the authorities. However, possession of a baptismal font was originally the legal test that a building was a church, i.e a place of public worship, and therefore subject to the rights discussed earlier. Thus the font may be the foundation of parishioners’ rights over their parish church, even if baptism per se is not.

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.

The Diocesan Board of Finance: Constitution, Custody and Management

The property of an English diocese may be divided into 4 categories

(1) parochial (i.e parish property)

(2) benefice

(3) episcopal and

(4) cathedral.

The Diocesan Board of Finance (henceforward ‘DBF’) is only concerned with (1) and (2).  (3) is now the responsibility of the Church Commissioners (cf Episcopal Endowments and Stipends Measure 1943).  (4) is the responsibility of the Cathedral Corporation, though subject to some oversight by the Church Commissioners.

Constitution

The Diocesan Boards of Finance Measure 1925 requires every diocese to have a DBF.  However, the 1925 Measure did not invent DBFs.  They have probably existed since Victorian times.  Introducing the Measure to the House of Commons, Lord Hugh Cecil observed that ‘There are [already], all over England, diocesan boards of finance, and it is desired by this Measure to bring them all under one form’ i.e constituted as companies (Hansard vol 189, 16th December 1925).

The DBF must be incorporated as a company under the Companies Acts. This is in contrast to the parochial church council, which is a statutory body corporate, but not a company. Other ecclesiastical committees, if required to be incorporated, are statutory corporations, not companies.

Why are DBFs different?  The evident policy of the 1925 Measure was to permit local flexibility and discretion.  Thus the Measure provides that the DBF’s constitution may ‘confer … such further powers on the [DBF] as the diocesan synod … may think necessary or expedient in view of the requirements of the diocese’ (s.1(2)(c)). A Church of England report observed that ‘the diocesan synod has considerable discretion as to the constitution of its DBF … DBF constitutions … show a wide variety of provisions governing membership of a DBF and … [its] directors’ (DBFs: Conflicts of Interest, para 1).

The DBF’s title may cause confusion.  A DBF is called a board, but it is constituted as a company.  There is, of course, an important legal distinction between a company and its board of directors.

The bishop must be a member of the DBF (though not necessarily its chairman). A majority of the DBF’s members must be

(1) elected, either by the diocesan synod or by the deanery synods of the diocese

(2) members of the diocesan synod (membership of a deanery synod will not suffice) and

(3) laymen (or laywomen).

The DBF, then, is constituted by the diocesan synod, and is accountable to it.  The 1925 Measure provides that the DBF ‘shall in the exercise of its powers and duties comply with such directions as may be given to [it] by the diocesan synod’ (s.3(1)).

S.19 of the Dioceses, Pastoral and Mission Measure 2007 suggests that it is possible for 2 or more DBFs to discharge their functions jointly, or delegate their functions to each other.  It is also possible for 2 or more dioceses to create a single, interdiocesan DBF.  Such interdiocesan arrangements concerning ‘any body corporate or unincorporate or committee … other than a diocesan synod or bishop’s council’ (s.19(1)) require the authority of a statutory scheme made by the bishops concerned, with the approval of their respective diocesan synods, and of the Charities Commission.

The 1925 Measure does not mention the Church Commissioners (or Ecclesiastical Commissioners as they were then known).  However, as the DBF’s responsibilities have broadened since 1925, so it has become subject to the oversight of the Church Commissioners, as well as the local synod.

Thus the Church Property Measure 2018 obliges DBFs to provide information required by the Church Commissioners on any matter concerning its functions under that Measure.  And the DBF must ‘have regard’ to any advice tendered by the Commissioners concerning those functions (s.40).

Function

The DBF has broad powers ‘to hold real and personal property for purposes connected with the Church of England’, and ‘to transact business in connection with the Church of England and the diocese …’ (1925 Measure, s.1(2)).  In practice, the DBF’s principal responsibility today is the maintenance of ministry in the diocese, and hence to acquire sufficient property and income to achieve this.  Also to meet its own office expenses, and certain other diocesan expenses. However, it is argued that parochial and benefice property are the nucleus of the DBF’s function.

Parish property ((1) above) may be subdivided into

(1) property regulated by the Parochial Church Councils (Powers) Measure 1956.  This includes ‘property … applicable to purposes connected with [the] powers, duties or liabilities’ of the parochial church council (‘the PCC’) (s.4(3)).  Also property acquired property acquired by the PCC ‘for any ecclesiastical purpose affecting the parish’, or for ‘educational schemes’ (s.5(1)).  Such property is likely to consist principally of a church hall and parish funds.

(2) property regulated by the Incumbents and Churchwardens (Trusts) Measure 1964.  This is property ‘held on [specific] charitable trusts, established for ecclesiastical purposes’, of which trusts the incumbent and churchwardens are ex officio trustees (s.2), e.g trusts for the provision of religious education.

Benefice property ((2) above) comprises

(1) the church and churchyard

(2) the parsonage (i.e the official residence of the incumbent)

(3) other official residences and

(4) glebe, which provided the incumbent’s income.

(Tithe and tithe rentcharge have now been abolished.)

Some dealings will affect all species of parochial and benefice property.  Parishes and benefices, and hence their property, are regularly subject to reorganisation under statutory powers now contained in the Mission and Pastoral Measure 2011.  The DBF is required to hold a pastoral account, for the income and expenses of a reorganisation (2011 Measure, ss.93 and 94).  A reorganisation proposal is required to consider ‘the financial implications for the diocese’ (s.3(2)), but (perhaps surprisingly) the DBF is not required to be consulted about a reorganisation, except where this involves the closure of a church (s.21(7)).

Parochial and benefice property may also be subject to a sharing agreement, made with other Christian denominations under the Sharing of Church Buildings Act 1969.  The 1969 Act provides that the DBF must be a party to such an agreement (s.1(3)), so will be able to influence its terms and performance.

The DBF has a general power to buy or otherwise acquire, and to grant, land and buildings for use as a church or other place of worship, or as a churchyard, church hall and parsonage (Church Property Measure 2018, s.28).  The 2018 Measure also provides for the grant of land to the DBF for such uses (ss.29-31).

(1)  The Parish

The PCC may not acquire, sell or otherwise deal with land (other than short leases) or trust property without the DBF’s consent.  To ensure that this rule is observed, such land or trust property must be transferred to, or become vested in, the DBF as legal owner (1956 Measure, s.6).  Nevertheless, the PCC remains responsible for all liabilities and outgoings relating to the property (s.6(4)).  A similar rule applies to trust property regulated by the 1964 Measure.

These rules reflect the distinction found in trust law between (1) custody and (2) management.  The DBF is custodian of parish property, while the parochial authorities are its managers.

Minor dealings with parish property below a certain specified value will not require the DBF’s consent (1956 Measure, s.6(4A), 1964 Measure, s.5A).

Parish accounts must be laid before the DBF annually (1956 Measure, s.8(4)).

The DBF has custody of parochial land and trust property, but it has no charge over parish funds (e.g bank deposits and ‘personal’ investments that are not subject to a specific trust).  However, it has long been the practice (again, perhaps since Victorian times) for parishes to make an annual contribution to diocesan expenses.  This is known as the parish share or quota.  It is possible to see, proudly displayed on a church noticeboard, a ‘certificate’, signed by the grateful bishop, and ‘presented in recognition and appreciation of your [parish] share’.

The Synodical Government Measure 1969 makes an oblique reference to the practice: ‘the diocesan synod [may] delegate to the deanery synods … the determination of parochial shares’ (s.5(4)).  Thus, unlike most charitable giving, the parish does not simply decide what it wants to donate. The local synod assesses what it should pay.

Roman Catholic law empowers the bishop to impose a ‘moderate tax’ (tributum) on parishes ‘proportionate to their income … for diocesan needs’ (Code of Canon Law 1983, canon 1263).  This taxing power apparently originated in the cathedraticum, a payment made ‘as a sign of … subjection to … episcopal authority’ (The Code of Canon Law.  A Text and Commentary, eds Coriden, Green and Heintschel, New York 1985, p.866).  Perhaps the Anglican parish quota / share was inspired by this Catholic custom.  However, though the quota / share assessment may resemble a charge or tax, payment of it is purely voluntary.  The wording of the 1969 Measure does not empower the synod to enforce payment of its assessment, and there is no other statutory provision for enforcement.

Parish property, including trust property, can be appropriated (i.e converted) into glebe, but the PCC or trustees, and the Charities Commission, must consent to this (s.19(3)).

Where a joint PCC of 2 or more parishes is either created or dissolved, the DBF resolves any question that may arise concerning the property, rights, liabilities or functions of the PCCs concerned (Church Representation Rules, as amended by the Church Representation and Ministers Measure 2019).

If there is a dispute over an entry on the parish electoral roll, or over the outcome of a synodical election, the DBF may be liable to meet the legal expenses of resolving the dispute (ibid).

(2) Church and Churchyard

The DBF has less direct responsibility for churches (and churchyards) than any other parochial or benefice property.  It is neither custodian nor manager.  The incumbent and churchwardens have custody of the church and its contents, while the care of the church is now the financial responsibility of the PCC.  Dealings with the parish church are subject to the oversight of the archdeacon and the ecclesiastical courts (under the faculty jurisdiction).  Any grants or loans made by the DBF are discretionary.

The statute law follows the common law rule of ownership.  Thus land acquired by the DBF for use as a church or churchyard automatically vests in the incumbent (2018 Measure, s.32).

However, the Ecclesiastical Fees (Amendment) Measure 2011 provided that fees (traditionally known as ‘surplice fees’) that were formerly payable to the incumbent (eg for weddings and funerals) should in future be paid to the DBF.  This was a sensible reform, as the DBF is now responsible for clergy remuneration, and incumbents should not be paid twice for the same work (a fortiori they should not be paid for work done by other clergy who deputise for them).  These fees are the only statutory, compulsory income that the DBF receives.

An agreement between a PCC and a lay rector to compound the latter’s liability to repair the chancel (i.e get rid of the liability in return for a lump sum payment) requires the DBF’s approval (Ecclesiastical Dilapidations Measure 1923, s.52).

Every diocese must establish a fund to meet the cost of inspecting churches (Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s.45(2)).  The DBF is the obvious body to hold and administer this fund, though this is not explicitly provided for.  The DBF must also meet the expenses of the diocesan advisory committee, which advises on the care of churches (s.37(10)).  If the bishop or archdeacon intervenes in faculty proceedings, the DBF is responsible for their legal expenses, provided it has been consulted in advance (s.60(4-6)).

The DBF has little direct responsibility for a functioning parish church, but considerable responsibility for a church which has been closed, i.e made redundant, under the Mission and Pastoral Measure 2011.

The precise terms of the DBF’s involvement with a closed church will depend on the particular statutory scheme of closure.  However, the DBF is usually responsible for the contents of a closed church, pending their disposal (s.76).  The ownership and management of a closed church may be transferred to the DBF pending sale, or on a permanent basis, perhaps for commercial use and profit (s.63).  If no further use can be found for a closed church, the DBF may be entrusted with the melancholy task of demolishing it (s.58(2)).

(3)  Parsonages

Parsonages, like churches and churchyards, vest in the incumbent, not the DBF.  As with a church, any parsonage acquired by the DBF will automatically vest in the incumbent (2018 Measure, s.32).  Thus the DBF, qua DBF, is neither custodian nor manager of parsonages.

The Repair of Benefice Buildings Measure 1972 requires every diocesan synod to appoint a parsonages board to manage parsonages (s.1).  (Parsonages boards were formerly known as dilapidations boards, but the 1972 Measure abolished this depressing title.)  The diocesan synod has the right to designate the DBF itself as the parsonages board.  If the DBF is designated as parsonages board, it must delegate its managerial functions under the 1972 Measure to a special committee (or committees).

As the parsonage vests in the incumbent, and not the DBF, the DBF has no power to sell a parsonage.  However, the surplus proceeds of any sale belong to the DBF (Church Property Measure 2018, s.13(1)).

Also, if the DBF is opinion that a parsonage house or land ‘is not required [for] the incumbent’s … convenient occupation’, it may request that the property be transferred to itself, and held as glebe (Church Property Measure 2018, s.8).  If the Commissioners and the bishop agree, the bishop may then order the transfer of the parsonage to the DBF, even if the incumbent objects, without the need for any further conveyance (s.8).

As a general rule, parsonage land cannot now be leased.  If not required for the incumbent’s residence, it must be transferred to the DBF as glebe. However, during a vacancy in the benefice, the DBF may agree to the benefice sequestrators leasing the parsonage.  Any profit left over when the benefice is filled must be paid to the DBF (s.37(1)).

There may also be some old leases of parsonage land, granted by incumbents before the Endowments and Glebe Measure 1976 took effect.  The incumbent remains the nominal landlord of such a lease.  However, the DBF effectively manages the lease.  It is entitled to information from the incumbent or sequestrators concerning leased parsonage land (s.6).  The rent must be paid to the DBF (s.7), and is treated as the DBF’s income, not the incumbent’s.  For its part, the DBF, not the incumbent, meets all the costs of the landlord’s obligations and liabilities.

(4)  Other Official Residences

Non-incumbent parochial clergy (assistant curates, team vicars etc) do not own their official residences.  If a curate’s house is supplied by the PCC, or by a parochial trust, it will vest in the DBF as custodian, under the 1956 or 1964 Measures discussed earlier.

An official residence may also be acquired and held by the DBF in its own right.  The Diocesan Boards of Finance Measure 1925, as amended, provides that the DBF may not alter or dispose of a team minister’s residence without informing and consulting that minister (s.3(2)).

The Ecclesiastical Offices (Terms of Service) Measure 2009 provides that the parsonages board, not the DBF, is ‘housing provider’ for all non-incumbent diocesan officeholders who are entitled to housing as part of their ‘common tenure’ (s.4(7)).  As housing provider, the parsonages board now has similar responsibility for managing other official residences as it has for parsonages (cf Terms of Service Regulations 2011, reg 12).

As mentioned, the DBF may also be the parsonages board.  If it is not, the parsonages board has an independent power to hold property (1972 Measure, s.1(5)).  However, the common tenure regime does not require the parsonages board to be the legal owner of the housing that it provides.  ‘Housing provider‘ does not necessarily mean ‘housing owner‘.  It should be possible for a parsonages board to provide and manage a residence that is legally owned by the DBF.

(4)  Glebe

The most significant extension of the DBF’s functions since 1925 occurred when the Endowments and Glebe Measure 1976 transferred all benefice glebe to the DBF (by s.15).  Hitherto the glebe had vested in the individual incumbents and been managed from London by the Church Commissioners.

The effect of the 1976 Measure was to convert benefice glebe into diocesan glebe, making it the investment property of the entire diocese.  The DBF’s function was ‘to hold, manage and deal with the diocesan glebe land for the benefit of the diocesan stipends fund‘, i.e clergy remuneration.

The Church Property Measure 2018 makes a distinction between 2 types of glebe

(1) historic glebe, which vested in the DBF under s.15 of the Endowments and Glebe Measure 1976 and

(2) glebe held under the 2018 Measure or its predecessors, or under a reorganisation scheme (s.48(6)), i.e property acquired by the DBF after the 1976 Measure came into force.

The parish share, discussed above, is income.  The glebe, by contrast, is capital, a portfolio of capital assets.  The DBF’s functions concerning glebe are different from those concerning parish property.  While the DBF has custody of parish property, it is required ‘to hold, manage and deal with the diocesan glebe land for the benefit of the Diocesan Stipends Fund’ (s.16(1)).  The DBF both owns and manages the glebe.

To this end the DBF must have a scheme for the management of glebe land (s.17).  In managing and dealing with glebe, the DBF is itself subject to the oversight of the Church Commissioners.  Any changes to a management scheme require the Commissioners’ consent (s.17).  The Commissioners may even suspend a scheme if it is not being complied with, or not achieving ‘efficient management’ (s.18(1)), effectively putting the DBF into ‘special measures’.  The DBF is also required to report to the Commissioners on ‘such matters as the Commissioners specify’, and transactions concerning glebe (s.16(2)).

Some dealings with glebe (sale, lease, mortgage) may require the consent of the Commissioners.  However, consent is not required if the dealing is an arm’s-length commercial transaction and the DBF is advised by a qualified surveyor (s.21).  The same rules apply to the purchase of land by the DBF (s.28).  The relevant PCC and clergy must be notified of a proposed dealing (s.22).  Disposal proceeds must be allocated to the stipends fund.  The DBF must keep appropriate accounts (s.26(5) and (6)).

The DBF is empowered to require an incumbent or benefice sequestrators to provide information and documents concerning historic glebe ((1) above) in their area, and may even take them to court if they neglect to comply (s.16(4) and (5)).

Any dispute between the DBF and an incumbent or sequestrators concerning the historic glebe ‘or rights … to which the land was subject or of which it had the benefit’ is decided by the Commissioners.

Although the ownership and management of glebe was transferred to the DBF by the 1976 Measure, the Commissioners continued to hold the diocesan stipends fund for many years thereafter.  Not until the Miscellaneous Provisions Measure 2000 were the funds transferred to the DBFs (s.1(1)).  The funds are regulated by the Diocesan Stipends Fund 1953, as amended.

As well as stipends, the DBF is responsible for certain compensation payments to clergy for loss of office.  Compensation for officeholders who are made redundant as a result of pastoral reorganisation is regulated by Schedule 4 of the Mission and Pastoral Measure 2011.  An incumbent who is removed under the Vacation of Benefices Measure 1977 (though this hardly ever happens) is also entitled to compensation.

An officeholder who is dismissed for incapability under the ‘common tenure’ regime can bring a claim of unfair dismissal in the (secular) Employment Tribunal.  The DBF is respondent to such a claim and hence liable for any compensation awarded (Terms of Service Regulations 2011, reg 33).

The DBF also has an increasing responsibility for clergy pensions (and those of lay ministers).  The Pensions Measure 1997 provided that, while the Commissioners continue to be responsible for pension contributions in respect of pre-1997 service, the DBF is required to contribute to the post-1997 pension fund held by the central Pensions Board (Pensions Measure 2018, ss.9 and 10).

As part of its pension responsibilities, the DBF must appoint a widows and dependants committee, and a special officer to represent the interests of widows and dependants (2018 Measure, s.51).

Church Disposal: Statute and Squatting

King and Blair v Incumbent of the Benefice of Newburn and Newcastle Diocesan Board of Finance (2019) Upper Tribunal 176

This case concerned a family burial vault in a redundant church.  The local incumbent and the diocesan board of finance claimed ownership of the vault on the basis of adverse possession, known colloquially as ‘squatter’s rights’.  The secular Tribunal rejected the claim, for wholly convincing reasons.  Apart from anything else, there was no evidence that the incumbent or the board had ever even entered the vault.  Squatting is, by definition, a physical entry on land.

However, the most intriguing aspect of the adverse possession claim is why it was brought in the first place.  The closure and disposal of redundant churches has been a melancholy but routine procedure for the last 50 years at least, as church attendance has declined.  So why did the ecclesiastical authorities find it necessary to assume the undignified pose of squatters?  Why did the statutory powers that have been exercised for decades prove inadequate in this one case?  The Tribunal observed that ‘there is no recorded authority which is directly determinative of the principal issue raised by this appeal’ (para 18).

The judgment relates that the church was donated in 1837, and consecrated by the local bishop just 9 days later.  However, the instrument of donation reserved to the donor, and his ‘heirs and assigns’

‘the vault or burying place in the interior of the said [church] lately made by me with full power … to enlarge the said vault so only that it do not extend beyond the body of the said [church] and do not injure the walls or foundations thereof … also with full power … to open such vault … and use and repair the same at all reasonable times’ (para 2).

The Tribunal found that the vault ‘was of a completely different structure to the stone floor of the church, … being … of brick [as distinct from stone] construction’ (para 8).  There was no external entrance to the vault.  Access was only possible ‘from the interior, and not the exterior, of the church … by way of a stone pavement slab … set into the stone floor’.  In order to lower a coffin into the vault ‘further pavement stones would also need to be raised’.

The church had been closed (i.e made redundant) in 2004.  It was intended that the site be sold for (no doubt lucrative) residential development.

This was the reason for the unsuccessful claim of adverse possession of the vault.  The Tribunal stated that ‘the existence of the family vault … and uncertainty as to its true ownership … have prevented … any significant progress towards … disposal’ (para 4).  The donor’s surviving family were evidently reluctant to co-operate with the development proposal, and successfully resisted the adverse possession claim.

The Tribunal referred mysteriously to ‘the somewhat protracted and complicated procedural history of [this case]’ (para 1), but did not go into details.  However, the effect of the judgment was clearly stated: ‘if [the family] fails, the Church Commissioners will be free to dispose of the church building for residential use.  If [the family succeeds] … residential purposes [will be] unviable, the only option may be a proposal to demolish’ (para 4).

Although the Church’s claim of ownership by adverse possession was rejected, the judgment was careful to state that it gave ‘no decision’ on whether the family members involved in the case were indeed the true owners of the vault, as successors in title of the original donor (para 2).

Ownership of church buildings can be uncertain and obscure.  An old church may be a veritable bundle of property rights.  It is often said that the incumbent owns the freehold of the church, but the position is not as simple as that.  The case of Griffin v Dighton (1864) 122 English Reports 767 makes clear that ‘the freehold of the church [at common law] … is in the rector, whether spiritual or lay‘ (p.771).  If the incumbent is a mere vicar, the freehold will vest in the lay rector.

It was noted in Jones v Chapman (1869) Law Reports 4 Exchequer 273 that the freeholds of side-chapels and aisles in a church may vest in persons other than a lay rector or an incumbent (p.279), such as the heirs and descendants of those who built small chapels for family burials or (pre-Reformation) for the offering of Mass for their souls.  There must be many churches with family burial vaults.  Pews can also be subject to lay property rights.  Parishioners, of course, enjoy legal rights to attend Divine Service in their parish church, to have their marriages solemnised there, and to be buried in the churchyard.

The existence of all these disparate rights is the very reason that statutory powers are required to close and dispose of surplus churches.  Statutory authority, the ‘Parliamentary title’, is capable of overriding such rights.

The procedures for closing and disposing of churches are now consolidated in the Mission and Pastoral Measure 2011.  When the church in this case was first closed in 2004, they were found in the Pastoral Measure 1983 (itself the successor of the Pastoral Measure 1968).

The power to close a church is found at s.42 of the 2011 Measure (s.28 of the 1983 Measure).  Dealings with closed churches are regulated by Part 6 of the 2011 Measure (ss.55-79).

The general rule is that ‘the building closed for regular public worship, together with the contents thereof, shall … vest … without any conveyance or other assurance [i.e automatically], in the diocesan board of finance’ (s.61(1)).  The diocesan board of finance was indeed the legal owner of the closed church in this case (para 4).

S.71(9) (formerly s.59(9)) seems particularly germane.  It provides that a closed church ‘shall vest free of any trust or burial rights … provided that any person entitled to burial rights may claim compensation in respect of the loss … in default of agreement … determined by the consistory court … any compensation awarded shall be paid by the diocesan board of finance …’.

Viewed in the context of these statutory provisions, the adverse possession claim in this case is baffling.  When the church was closed, the burial vault should have vested automatically in the diocesan board of finance, regardless of who owned it before then.  No need for the board to claim squatter’s rights.  The donor’s family could have no claim in the secular court / tribunal, only in the ecclesiastical court, and only for monetary compensation.  And any compensation would be limited to loss of their own right to be buried in the vault (if they had one), not any other property right.

If a closed church is to be sold off to secular use (whether residential development or otherwise), s.78 (s.65 of the 1983 Measure) makes provision for the disposal of any human remains.  The detailed rules are at schedule 6.

The general rule is that remains must be removed from the church.  The personal representatives or relatives of the deceased persons are given the option of removing the remains themselves, and arranging their reinterment elsewhere, or their cremation (6(3)).  Otherwise, the Church authority takes responsibility for this.  The Secretary of State may grant a dispensation from schedule 6, if satisfied that the demolition or redevelopment of the church will not involve disturbance of the remains (s.78(3)).

Of course, all these statutory provisions only apply to a church.  The claim of adverse possession in this case becomes explicable if it is accepted that the burial vault was not part of the closed church, but a separate building.  Then the declaration of closure of the church could not have affected the ownership of the vault.

S.106 (s.87 of the 1983 Measure) defines a ‘church’ as a ‘church or chapel which has been consecrated for the purpose of public worship …’.  Thus a church building is not defined by who owns it.  A building does not have to have an ecclesiastical owner in order to be a church.  A church is defined by its (1) consecration and (2) purpose.

As the Tribunal noted, the consecration of a church extends to a burial vault (per Rugg v Kingsmill (1867) 1 Admiralty and Ecclesiastical Reports 343, at p.350).  So the consecration in 1837 applied to the vault as much as the church.  This suggests that the vault was part of the church, not a separate building.  Why should the consecration of a church extend automatically to a completely separate building?

The quotation from the 1837 instrument of donation makes clear that the donor of the church was reserving the ownership of the vault to himself and his heirs.  However, this does not make the vault a separate building from the church.  As discussed above, different parts of a single church building may be owned by different people.

The 1837 instrument itself describes the vault as being in the ‘interior’ of the church, not external to it.  The lack of any external access to the vault would also suggest that it was part of the church, not separate from it.

(With thanks, as always, to the indispensable Law and Religion blog for drawing attention to this interesting case.)

Part Time Churches: Closed for Regular Public Worship, but Open for Occasional Public Worship

A recent Church of England report contains some interesting suggestions on the future management of church buildings (Church Buildings Review Group, September 2015).

The canons of 1603 emphasised the sacred character of churches as places of worship.  Canon 88 lays down a general rule that ‘no plays, feasts, banquets, suppers, church-ales, drinkings [etc] or any other profane usage to be kept in the church, chapel or churchyard’.  However, this rule was apparently not absolute.  ‘Profane’ activities could be allowed for ‘good cause’, and with the permission of the incumbent and churchwardens.

Canon F16 of the revised canons cautiously permits plays, concerts, and exhibitions in churches, but only if they ‘are such as befit the House of God, are consonant with sound doctrine, and make for the edifying of the people’.  Permission is subject to any general directions issued by the bishop or other ordinary.  If the minister is in any doubt he must refer the matter to the ordinary ‘and obey his directions therein’.

The Sharing of Church Buildings Act 1969 permits the Church of England to share its places of worship with other Christian denominations, by means of an agreement under seal (s.1(8)).  A sharing agreement may provide for different denominations to hold their own services in the same building.  It may also dispense with the requirement to hold Church of England services on Sunday ‘to such extent as may be necessary’ to enable non-Anglican worship to take place (s.4(1)).

Shared churches must remain in the sole ownership of the Church of England if they are consecrated (which they generally will be) (s.5(1)).  The parochial church council (‘the PCC’) will also remain responsible for the care of a shared parish church, though the sharing agreement may provide for the other denominations to assist or make financial contributions (s.3(4)).

The ecclesiastical courts were initially conservative on the use of places of worship.  In the case of St. John’s, Chelsea (1962) 2 All England Reports 850, the Deputy Chancellor took the extreme (and absurd) position that churches are so sacred that any secular use of consecrated land is forbidden, even if no church is actually built on the land, or likely to be built in the future.

However, as churches grew short of worshippers and of money, the ecclesiastical courts pragmatically permitted income-producing secular use (delicately described as ‘shared use’ or ‘communal use’) that went considerably further than the scope of canon F16 and the Sharing of Church Buildings Act, a complete U-turn from St. John’s, Chelsea.  (See the blogpost ‘Shared Use’, which is filed below.)

Ecclesiastical law facilitated this new liberalism by the Pastoral (Amendment) Measure 2006 (now consolidated as s.68 of the Mission and Pastoral Measure 2011), which enabled the ecclesiastical court to sanction a lease of part of a church, subject to the restriction that the church premises ‘are, taken as a whole, used primarily as a place of worship’ (s.68(3)).

The obvious practical need for extending the secular use of a church is that the church might have to close altogether if the use is not permitted.

Common law made no provision for the closure of a parish church.  It may have regarded churches rather like highways: ‘once a church, always a church’.  However, it was held 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). In St George’s, Birmingham (1960) 1 Weekly Law Reports 1069, the chancellor held that the ecclesiastical court had an ‘ancient jurisdiction’ to permit the demolition of a church, without requiring statutory authority (p.1170). The church in that case was in ‘a very dangerous condition’ and it was ‘quite unrealistic to expect [it] to be preserved or reconstructed’ (p.1171).  So perhaps common law accepted that churches might cease to be used as such on account of destruction or extreme dilapidation.

The Church Building Act 1845 provided that a church might be demolished under the authority of a faculty, but only where a new church was built to replace it (s.1).  The faculty jurisdiction to replace a old church with a new one is now regulated by ss.17 and 18 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (recently amended by the Miscellaneous Provisions Measure 2014, s.13).  A church may be demolished by faculty only if the court is satisfied that another church will be erected on the site or curtilage.  A faculty may permit the demolition of part of a church.  S.18 also confers an emergency power on the chancellor to authorise the demolition of the whole or part of a church without a normal faculty.

Replacement of one building with another on the same site is not the same as closing down a church altogether.  The statutory procedure for making a ‘superfluous’ church redundant seems to have been first introduced by the Union of Benefices Measure 1923 (ss.19-27).  This was followed later in the 20th century by the Pastoral Measures 1968-1983.

Then the Dioceses, Pastoral and Mission Measure 2007 provided that the nasty words ‘redundant’ and ‘redundancy’ should no longer be applied to any dealings with churches. Redundant churches would henceforth be merely ‘closed for regular public worship’.  In a commentary on the 2007 Measure, Ms Ingrid Slaughter carefully explained that the r-word was considered ‘unhelpful’, not to mention ‘unduly negative and not a wholly accurate description of the outcome of the process’ (Ecclesiastical Law Journal, January 2009, pp.6 and 20).

The redundancy / closure procedure is now consolidated in the Mission and Pastoral Measure 2011.  There are 2 stages to the procedure

(1) closure, terminating the building’s constitution as a parish church and

(2) disposal, i.e deciding what is to be done with the church after it has been closed as such.

(1) and (2) both require the authority of a statutory scheme, not a mere faculty.  They may require separate schemes.  Closure of a church is effected by a pastoral church buildings scheme (so called to distinguish it from other pastoral schemes which do not involve closure).  A church buildings scheme may then be followed by a pastoral (church buildings disposal) scheme.

S.42 of the 2011 Measure provides that a declaration of closure may be made in respect of a church or chapel, or part of one, if it is not required, or will cease to be required as a result of the scheme.  (Thus the definition of redundancy remains, even if the terminology does not.)  Closure may be ordered even if the parish is left without a church as a result.

It is possible for both closure and subsequent disposal to be dealt with by a church buildings scheme only, without a separate disposal scheme.  A single scheme will be acceptable if

(1) a new church or licensed place of worship will be provided in the area of the benefice and there are satisfactory proposals for the future of the old building or

(2) the old building will be preserved or put to a suitable use. 

There is also a special expedited procedure in respect of certain long-disused churches (if there are any left).  If the bishop certifies that a church, or part of a church, has not been used for public worship since 1st April 1964, the Church Commissioners may dispose of the building without a scheme, but only if the incumbent, patron and PCC all agree (s.66).

S.66(2) provides that, where a church has already been demolished otherwise than under statutory authority, a disposal scheme may be made in respect of the site.  S.66(2) will apply in situations similar to that in St. John’s, Chelsea (1962), where the church had been destroyed by wartime bombing.

When a church has been closed but not yet disposed of, the legal ownership of the building and the responsibility for its care and maintenance both pass to the diocesan board of finance (s.61).  The parochial liability ceases.  The building also ceases to be subject to the faculty jurisdiction, unless the scheme provides otherwise (s.74(1)).

S.63 prescribes 4 options on a disposal:

(1) the appropriation of the church building to a ‘suitable’ permanent use, as specified in the scheme.

(2) the preservation of the building, if it is sufficiently important.  If preservation is ordered, the church is transferred to the Churches Conservation Trust (s.71(7))

(3) the building may remain vested in the diocesan board of finance for specified uses, and may be let or licensed by the board to a third party

(4) only if none of the above options is feasible is demolition permitted.  Demolition is the last resort.

S.79 of the 2011 Measure usefully provides that a closed church, whether vested in the board or the Trust, may be transferred by agreement to the government or to English Heritage, a secular body.  This will, of course, relieve the Church of the cost of maintaining the building.  A s.79 agreement effectively overrides the disposal process.  Any disposal provision ceases to apply when its subject is acquired by the secular body.  The secular body is not bound by it.

As Ms Slaughter implied, an ex-parish church can still be used for some sort of worship

The Churches Conservation Trust may permit the use of a preserved church for worship as authorised by the bishop (s.57(9)).  This may include non-Anglican Christian worship.  Likewise the diocesan board of finance may permit such worship ‘occasionally’ in its church buildings (s.61(2)).  Such worship is always a permissible use to which a closed church may be appropriated (s.63(13)).  Also, a closed church may be reopened and restored to use as a place of worship by a subsequent church buildings scheme (s.70).  This is possible even if the church has been transferred under s.79, but only if the secular body consents.

The recent report seems to propose, or at least hint at, a kind of spectrum of use of church buildings. A church at one end of the spectrum will remain in full and exclusive use as a place of worship. A church at the other end will be completely given over to secular use.  Churches in between will be subject to shared use, which may be predominantly religious or predominantly secular. A church might become a ‘festival church’, its religious use being limited to occasional worship on important festivals (para 147).

To this end, the report recommends (para 133) an amendment of the Parochial Church Councils (Powers) Measure 1956, so that the care of open churches should be legally transferable from the PCC to another body, whether secular or ecclesiastical, that is willing to assume the responsibility, while retaining the incumbent’s freehold.  A local community trust or parish council, or some national body might be an appropriate body to look after the parish church.  Or the Churches Conservation Trust might do so, even though the church has not been closed and is still a parish church.

Our account suggests that this model of church use is not particularly radical, but merely continues the trend of modern ecclesiastical law.

Ecclesiastical Burial: Disposal, Decency and Disturbance

This is an account of ecclesiastical law’s treatment of human remains.  It does not address all the legal rights, duties and functions connected with ecclesiastical burial.

Disposal

There is a helpful summary of ecclesiastical burial rights in the case of West Pennard Churchyard (1991) 4 All England Reports 124:

(1)  the common law right of burial in the churchyard (or other ecclesiastical burial ground) extends only to resident parishioners, and to strangers who die in the parish.

(2)  The common law right is extended by the Miscellaneous Provisions Measure 1976 to persons on the parish electoral roll (s.6(1)).

(3)  Anyone else seeking burial in the churchyard may obtain permission from the incumbent, under s.6(2) of the 1976 Measure.  S.6(2) provides that the incumbent’s discretion is subject to ‘general guidance given by the parochial church council’ (PCC).

(4)  A person may acquire a right of burial by obtaining a reservation faculty.  This is ‘wholly in the judicial discretion of the [consistory] court’ (p.126).  Such a faculty may, exceptionally, be granted to a non-parishioner.

Rights of burial are obviously subject to the availability of space in the churchyard.  In West Pennard, the consistory court stated that ‘no churchyard is full and ripe for closure until all parts of it in which reburial is possible have been buried over again at least once’.

The Miscellaneous Provisions Measure 1992 confirms that a person who has a right of burial in a churchyard has the same right to burial of his cremated remains (s.3(1)).  It further provides that, although the common law right applies only to open churchyards, the burial of cremated ashes in a closed churchyard remains permissible under the authority of a faculty.  A faculty may also permit the designation of a particular area within a closed churchyard for the burial of cremated remains generally.

Apart from these general provisions, it is possible that a person may enjoy a special statutory right of burial.  For example, the Consecration of Churchyards Act 1867 empowers a donor of land which is added to a churchyard to reserve a right of burial over part of that land, not to exceed one-sixth of the total (s.9).  Any such reservation must be recorded on the instrument of consecration.

There is a common law right to burial in the churchyard, but no legal duty to be buried there.  Halsbury’s Laws states that ‘There is a duty to dispose decently of a dead body on the personal representatives or person lawfully in possession of the corpse’ (5th edition, vol 24 title Cremation and Burial, para 1103), but this does not require an ecclesiastical burial.

Halsbury’s Laws also affirms that ‘The general rule of common law still stands, that there is no property in a dead body’ (para 1105).  This rule applies to bodies buried on ecclesiastical premises.  The duty to dispose of the body gives to those responsible a right of possession of the corpse.  Once the corpse has been buried, however, this right of possession ceases, as the duty has been completed.

In Burial Board of St. Margaret’s Rochester v Thompson (1871) 40 Law Journal New Series 213, the Court of Common Pleas explained that ‘the [common] law [of ecclesiastical burial] was plain: dead Christian parishioners had a right

[1] to have burial within the consecrated burial-yard of the parish and

[2] to have the ordinary [burial] service of the Church performed over them’ (p.217).

The ecclesiastical duty was divided between the clergyman and the sexton (or verger): ‘the clergyman had to perform the religious part of the ceremony, the sexton the ministerial [part]’.  The ‘religious’ duty was to read the burial service.  The ‘ministerial’ duty was twofold, to (1) dig the grave and (2) toll the bell.

Thus common law conferred on the parishioner the right both to burial and to a burial service.  The only distinction was that the work was divided between two different ecclesiastical persons.

However, it was not possible to choose burial but reject a burial service (or vice versa).  Canon 68 of 1603 made clear that burial and the burial service had to be performed together.  The Court of the Arches added that ‘our Church knows no such indecency as putting a body in the consecrated ground without service being at the same time performed’ (Kemp v Wickes (1809) 161 English Reports 1320, at p.1330). In R v Coleridge (1819) 161 English Reports 1343, Chief Justice Abbott confirmed the secular courts’ acceptance that ‘the mode of burial is of ecclesiastical cognisance alone’.

The inseparability of the burial from the Anglican burial rite caused friction between the Established Church and other denominations, who wished to bury their departed adherents according to their own rites.  The ‘churchyards controversy’ was particularly acute in Wales.  The Welsh Church Act 1914 originally provided for the secularisation of all churchyards, by transferring them into the ownership and control of the local authorities (though many of them were later handed back to the Church, under the Welsh Church (Burial Grounds) Act 1945, because the local authorities could not afford to maintain them).

The older ecclesiastical law only permitted burial rites in the churchyard or other ecclesiastical burial ground.    As churchyards became closed to further burials in the 19th century, municipal cemeteries were opened. Cemeteries may include a part specially consecrated for Anglican use.  The consecrated part of a cemetery is treated as an ecclesiastical burial ground.

However, the link between ecclesiastical burial and ecclesiastical (or consecrated) ground has been weakened in modern times.  The Burial Laws Amendment Act 1880 eased the sectarian tensions by permitting burial of non-Anglicans in a churchyard ‘either without any religious service, or with [a] Christian and orderly service at the grave’ (s.6). Therefore non-Christian religious services are still not permitted.

Shortage of consecrated burial space may also necessitate ecclesiastical burial in unconsecrated ground.  The 1880 Act makes clear that burial rites may be used in unconsecrated ground (s.12).  Canon B38(5) of the revised canons provides that, on such occasions, the officiating minister must first bless the unconsecrated grave.

Crematoria are unconsecrated, of course, and often a considerable distance from the church and churchyard.  Canon B38(4) therefore provides that, in cremations, ‘the burial service may precede, accompany or follow the cremation, and may be held either in the church or at the crematorium’.

Canon B38(4) further provides that cremated ashes ‘should be interred or deposited, by a minister, in consecrated ground’.  Of course, the Church is not in a position to enforce this latter provision, since the minister cannot have possession or control of the ashes at the crematorium.  The deceased person’s family may prefer an unhallowed destination for the ashes (e.g a vase on the living room mantelpiece, or scattering in some place of sentimental importance).

Decency

Phillimore’s Ecclesiastical Law suggests that ‘[the] practice of praying for the dead seems to have been the true origin of churchyards’ (2nd ed, 1895, p.658).  By burying the corpses of deceased parishioners in the very centre of the parish, in and around the parish church, rather than in some discreet out of the way place, the mediaeval Catholic Church emphasised the communion between the living and the dead, the Church on earth and the metaphysical Church.  As Phillimore implies, it encouraged the parishioners to pray for the souls of the departed, and, of course, to remember their own mortality.  The old rule of canon law which denied burial in consecrated ground to the unbaptised, excommunicates and suicides made the point that such persons were outside the communion of the Church.

In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches made an unconvincing attempt to update the theological position.  It referred to ‘The general presumption of permanence [of burial] … [which] originates in the Christian theology of burial.  This theology underlies the consecration of land … for burials and … the [burial] rites of the Church of England …’ (pp.486-7).  For this reason ‘It is … very important that cemetery managers and funeral directors give a simple explanation to the bereaved about the difference between consecrated land (to which the theology of burial has application) and unconsecrated land’ (pp.487-8).

Yet this alleged ‘Christian theology’, with its assertion of a link between consecration and burial rites, is hard to reconcile with the modern ecclesiastical law discussed above, which has weakened the link between consecration and burial.  It is also hard to see how human remains in an unconsecrated municipal cemetery are treated any differently from those in a churchyard (let alone the consecrated part of the same municipal cemetery).  How is burial any less ‘permanent’ in unconsecrated ground than in consecrated ground?

The only principle apparent from the modern ecclesiastical law is that of decent treatment of the dead.  Decency is, at least to some extent, a matter of cultural value judgement.  Cremation was a controversial practice at first.  The Cremation Act 1902 gave clergy the right to refuse to officiate at crematoria (s.11). This provision was not repealed until as late as 1992, by the Miscellaneous Provisions Measure of that year.  However, Canon B38(3) now confirms that ‘cremation of a dead body is lawful in connection with Christian burial’.

The case of Caistor-on-Sea (1958) 1 Weekly Law Reports 309 concerned a proposal to reinter about 80 unidentifiable dead bodies in a communal grave.  The chancellor refused to grant a faculty for this work.  However, he noted that ‘Although communal burial may seem distasteful … yet that practice has long been followed, particularly in cases of natural disaster: it followed often … after heavy bombing raids during the war …’ (p.311).

Modern legislation makes clear that decent treatment of the dead is not inconsistent with public amenity.  Thus the Open Spaces Act 1906 empowers a local authority to hold a closed burial ground, including a closed churchyard, for ‘the enjoyment thereof by the public’ as an open space (s.10).  Sporting activities are allowed on an open space, subject to faculty.  It may also be permissible to use an open space as a carpark.

The Disused Burial Grounds Act 1884 permits building on a closed churchyard, but only for the purpose of ‘enlarging’ an adjoining church or chapel, and subject to faculty (s.3).  The Mission and Pastoral Measure 2011 provides that a statutory scheme under the Measure (not a faculty) may authorise building on burial grounds, but only if there have been no burials in the previous 50 years, or, if there have been more recent burials, no relative or personal representative objects (s.44(4)).  A very recent change in the law means that a faculty can now be granted for building on a disused burial ground, subject to the same conditions as for a statutory scheme, even if the building does not constitute an enlargement of the church (Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.18A, which was inserted by an Amendment Measure of 2015, s.4).

The burial of human remains is a different subject from the building of gravestones and other funerary monuments.  Gravestones are not inseparable from the remains that they commemorate.  The court observed in Holy Trinity Church, Freckleton (1995) 3 Weekly Law Reports 299 that ‘The right to be buried … does not include a right to erect a memorial’ (p.1590).  In St. James, Heywood (1982) 1 Weekly Law Reports 1289, the chancellor allowed that ‘gravestones do have a very special significance by being placed above burial places of those commemorated’ (p.1292).  However, he maintained that ‘this significance … probably is largely emotional’.  He pointed out that it is not uncommon for memorials to be erected inside a church to commemorate a person buried outside it.

Decent treatment of the dead should not be confused with delicacy to family feelings.  If a gravestone or monument is to be moved, this may cause distress to the deceased’s relatives (and for wholly understandable reasons), but nevertheless will not engage the principle of decent treatment of the deceased’s remains.

Gravestones and monuments, unlike remains, are property and therefore capable of legal ownership.

Disturbance

The account of ecclesiastical burial thus far suggests two points concerning the disturbance or exhumation of human remains:

(1) if there is no property in a dead body, it follows that relatives can have no right either to demand the exhumation of the body, or to veto its exhumation.  The body does not belong to them

(2) if exhumation is permitted too readily or casually, this is inconsistent with the principle of decent treatment of the dead.

In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches permitted the exhumation of a body for reburial in an unconsecrated municipal cemetery.  This decision was consistent with the modern ecclesiastical law discussed earlier (though it was inconsistent with the Court’s own theological musings on burial in consecrated ground).  Ecclesiastical burial is no longer confined to consecrated ground.  It is, however, necessary for the ecclesiastical court to be satisfied that the remains will be decently reinterred and cared for elsewhere.

The Court made the sensible point that, if there is a proposal to remove a body to the unconsecrated part of a local authority cemetery ‘it is reasonable for the consistory court to conclude … that the new grave will be cared for in a seemly manner and will be protected in this sense [of being cared for]’, though ‘Reinterment in unconsecrated ground which is not a local authority cemetery is a different matter.  No general inference of … suitability … can properly be drawn’ (p.486).

Cremated remains may be buried in caskets, and will therefore be capable of exhumation (Christ Church, Alsager (1999) Family 142).

Ecclesiastical exhumation cases may be divided into three categories

(1) public

(2) private (family)

(3) scientific interest.

(1) Public.  A reordering or development of a churchyard may well involve disturbance of remains buried therein.  Like other dealings with churches and churchyards, this is a matter for the faculty jurisdiction, though subject to s.3 of the Disused Burial Grounds Act 1884 mentioned earlier.

The Mission and Pastoral Measure 2011 provides for the disposal of human remains where a church is ‘closed for regular public worship’ (i.e made redundant) and where the building or land is given over to secular use (at s.78 and schedule 6).  The ecclesiastical court is not involved in this procedure, and no faculty is required. Instead the landowner (i.e the owner/lessee/licensee) of the land or building must advertise its intention to dispose of the remains before doing so.  Personal representatives and relatives must also be informed, if the interments are less than 25 years old.  Personal representatives and relatives (or the War Graves Commission, if appropriate) may claim the remains for reinterment elsewhere, or for cremation.  Otherwise the landowner must remove the remains and reinter them in land indicated by the bishop as ‘reasonably available’.  If the bishop gives no direction, the landowner/lessee must either reinter the remains in another burial ground, or cremate them.  All exhumations, reinterments and cremations are subject to any general directions given by the Secretary of State.

(2) Private faculties are often sought by relatives to remove a loved one’s remains to another location.  One difference between public and private exhumation cases is that, in the former, exhumation may cause distress if it is ordered, while in the latter, distress is likely if exhumation is refused.

Mistake is an obvious reason for ordering private exhumation.  If those involved in the burial were unaware of something which, had it been known at the time, would have caused them to dispose of the deceased differently, then the ecclesiastical court may order exhumation, rather as the High Court may set aside the action of a trustee for mistake.

Mark Hill refers to two unpleasant cases where exhumation was granted after an extra-marital affair and sexual abuse of a child, respectively, came to light after the funerals of the perpetrators (Ecclesiastical Law, 3rd edition (2007), p.268n).  When they discovered the truth, the relatives understandably did not care to be reminded of the perpetrators’ existence, nor to have the remains buried near those of other family members.

In Watson v Howard (also known as St Luke’s, Holbeach Hurn) (1990) 2 All England Reports 749, the consistory court ordered the exhumation of Mrs Howard’s remains from a plot that had been reserved, by faculty, to Mrs Watson.  The bereaved family had not been aware of Mrs Watson’s faculty.  However, Mrs Watson insisted on her legal priority, so Mrs Howard had to be moved elsewhere.

The Court of the Arches in Blagdon was concerned that private exhumations were being permitted too readily.  Although it did not limit exhumation to cases of mistake, it held that ‘a faculty for [private] exhumation will only be exceptionally granted’ (p.389).  It concluded sympathetically that the case before it was such an exception. The deceased had died suddenly, at a young age.  He had expressed no wish as to his place of burial.  There was no link between the deceased and the community where he was buried.  Moreover, his parents’ itinerant working circumstances had prevented them acquiring a permanent home at the time of his death.

Apart from this, the Court suggested that exhumation might be ordered if the medical condition of a bereaved relative demands it, though ‘any medical reasons … would have to be very powerful indeed … serious psychiatric or psychological problems … [linked to] the question of location of the grave …’ (p.490).  However, exhumation is unlikely to be permitted merely on account of a relative’s ‘advancing years and deteriorating health and change of place of residence’ (p.489).

(3) Scientific Interest.  Exhumations may be sought so that the corpse can be examined for reasons of historical or other scientific interest.  The leading case in this category is Holy Trinity, Bosham (2004) 2 Weekly Law Reports 833, which concerned remains alleged to be those of Harold II, the last Saxon King of England.  The case suggests that two criteria must be satisfied for a faculty to be granted:

(1) the subject of the investigation must be ‘a matter of great national, historical or other importance’ (p.845) and

(2) the investigation itself must hold out ‘the prospect of obtaining a meaningful result’ (p.846).

A faculty was refused.  The investigation of King Harold’s alleged remains satisfied criterion (1), but not (2).  The court accepted evidence that there would be no scientific means of establishing the identity of the remains, due to the passage of time.

The consistory court’s decision on King Harold was followed by the Court of the Arches in the St. Nicholas, Sevenoaks (2005) 1 Weekly Law Reports 1011, in which the Court refused to permit DNA testing on the remains of a man whose descendants believed him to be an illegitimate grandson of Queen Victoria.  However, exhumation was permitted in St. Mary Sledmere (2007) 1 Weekly Law Reports 1538, in favour of a professor of virology who wished to examine two bodies to carry out research into the influenza virus.

The court in Sledmere added a slight twist to the two Bosham criteria: ‘if public benefit is only in terms of increased historical knowledge … a high likelihood of success [is] required’ (p.1542).  However, if the case concerns ‘advances in treatment of dangerous diseases, then … an uncertain chance of success may suffice’.  In other words, the greater the importance of the investigation (criterion (1)) the easier it will be to satisfy criterion (2).  Medicine is more important than history.

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.

Churches and Churchyards: Freehold, Possession and Custody

Freehold and Possession

Mr Justice Blackburn explained the tenure of the parish church and churchyard in the case of Greenslade v Darby (1868) 37 Law Journal 137 Queen’s Bench:

‘Originally the land was the property of some lay person, which, when the rectory was formed, was dedicated to the Church and conveyed by the patron.  Then it was vested in the rector with fee simple, saving the right and property of the land which the original patron had, including grass, herbage and everything else’ (p.142).

Thus the rector is the freeholder of the church and the churchyard.  The rector may be either a lay rector or the incumbent of the parish.  If the incumbent is vicar of the parish, and not the rector, then his proprietary rights will be subject to the lay rector’s freehold.

The lay rector’s freehold of the parish church was examined in Griffin v Dighton and Davis (1864) 122 English Reports 767.  Mary Griffin was the lay rector.  The vicar and one of the churchwardens (Messrs Dighton and Davis) broke the door of the chancel and changed the lock.  Ms Griffin sued them for trespass, claiming that their action had infringed her freehold.

Chief Justice Cockburn dismissed her claim.  He accepted that ‘the freehold of the church … as well as the freehold of the churchyard, is in the rector, whether spiritual or lay: but this naked and abstract right carries with it … no right of possession, the latter being in the incumbent’ (p.771).

It is notable that the description ‘naked and abstract right’ was applied to the spiritual rector’s freehold, as well as that of the lay rector.  This suggests that, even where the incumbent is himself the rector, his real right over the church and churchyard derives not from the freehold but from the possession conferred on him by induction.

However, in Greenslade v Darby (cited above), Chief Justice Cockburn, together with Blackburn J, was required to decide a lay rector’s rights over the churchyard.  This time he came to a rather different conclusion.

The Rev Mr Greenslade was the perpetual curate (similar to a vicar), not the rector.  Mr Darby was a glebe tenant whose land adjoined the churchyard.  He turned his sheep into the churchyard for the grass.  Mr Greenslade sued.

He lost his case.  Cockburn CJ held that, as perpetual curate, he had no property in the churchyard, only a possession ‘for those spiritual purposes which attach to his office’ (p.142).  Mr Darby was a tenant of the lay rector.  The incumbent’s possession of the churchyard for spiritual purposes did not exclude the lay rector:

‘a lay rector may have the right to the trees growing in the churchyard, notwithstanding that he is not the spiritual minister and … therefore has not, for spiritual purposes, the possession … all rights incidental to the soil may be in the lay rector’.

Griffin and Greenslade suggest that a lay rector’s freehold of the churchyard differs markedly from the ‘naked and abstract’ freehold of the church.  The churchyard is treated as 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 lay rector, as the owner of the fee simple, 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).

The New Parishes Acts and Church Building Acts Amendment Act 1869 effectively applied the common law rules governing ancient parish churches to the tenure of the new churches built under the 19th century pastoral legislation.

Thus s.6 of the 1869 Act empowered the original owners to transfer ‘the freehold of any church or chapel, consecrated or unconsecrated’ to the Ecclesiastical Commissioners.  However, after consecration, these new churches became ‘subject to the same laws as to all rights and property therein as … ancient parish churches’.

Whether he is a rector or a vicar, the incumbent may have to compete with other freehold rights over particular parts of the parish church.  It was noted in Jones v Chapman (1869) Law Reports 4 Exchequer 273 that the freehold of side-chapels and aisles in a church may vest in persons other than a lay rector or incumbent (p.279).  Such freeholders are likely to be the successors in title of those who built small chapels for family burials, or (before the Reformation, of course) for the offering of masses for their souls.  Thus it may be difficult to ascertain the freeholders of ancient churches.

The Faculty Jurisdiction Measure 1964, s.1, offers a solution to this problem.  It provides that the consistory court may make a vesting order, inaccurately described as a ‘faculty’, concerning a part of a church building.  Such an order vests the building or structure in question in the freeholder of the church (i.e the incumbent or lay rector).

The court may only make a vesting order in an undisputed case, where the possible freeholders cannot be traced, or have not appeared in the proceedings.

Where no claimant appears the court must be satisfied that ‘all reasonable steps’ have been taken to communicate with them.  It may appoint a solicitor to represent any possible owner, even where none is known.  Even if the freeholder comes forward and consents to a vesting order the wording of s.1 suggests that an order may not be made if he has carried out works to his part of the church during the preceding 7 years.

It is not clear that the spiritual rector’s freehold of the church and churchyard is now even capable of subsisting.  When Griffin and Greenslade were decided, the freehold for life was a recognised legal estate in land.  However, as Chancellor Newsom noted in St. Paul’s, Covent Garden (1974) Family 1, this freehold life estate was abolished by the Law of Property Act 1925.  The only freehold estate in land now recognised at law is the fee simple.  Yet the 1925 Act did not vest the fee simple of church land in the incumbent.  At common law, a corporation sole can have, at most, only a life interest in land.

Modern pastoral legislation seems to ignore the 1925 Act, and simply follows common law.  Schedule 3(6)(1) of the Mission and Pastoral Measure 2011 does not use the words ‘freehold’ or ‘fee simple’, but merely provides that the property of a new benefice shall ‘vest’ in the incumbent, as spiritual rector.  (All incumbents of new benefices are now rectors.)  The Church Property (Miscellaneous Provisions) Measure 1960 likewise provides that land given for use as a church or burial ground shall, on its consecration, vest in the local incumbent (s.6(1)).

Possession and Custody

Churchwardens have no freehold of the parish church, but the Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that the possession of the church is in the minister and the churchwardens.  It took a more nuanced view in Lee v Mathews (1830) 162 English Reports 1119, holding that ‘the minister has, in the first instance, the right to possession of the [church] key, and the churchwardens have only the custody of the church under him’ (p.1120).

This restrictive view was strongly affirmed by the same Court in Ritchings v Cordingley (1868) Law Reports 3 Admiralty and Ecclesiastical 113, where the churchwardens interpreted their right of possession rather too freely.  A ritualist incumbent constructed a kind of ledge or ‘super-altar’ atop the altar of the parish church, without the authority of a faculty.  The vestry passed a resolution that the churchwardens should remove it.  One of the churchwardens forced an entry into the church by picking the lock, and dismantled the super-altar.  He was prosecuted for this in the ecclesiastical court.

Sir Robert Phillimore, then Dean of the Arches, held that the churchwarden had acted illegally, even though the super-altar was itself illegal.  The churchwarden’s action was illegal for the same reason as the super-altar.  It did not have the authority of a faculty.  The vestry had no power to authorise the action.  The proper course was to complain to the ordinary.

Phillimore upheld the incumbent’s proprietary precedence over the churchwardens, and affirmed Lee v Mathews.  He held that the churchwardens only have custody of the church when it is open for divine service, not at any other time.

The churchwardens’ rights over the church were further examined in Howell v Holdroyd (1897) Probate 198.  In the course of a ‘difference of opinion … as to who should have custody of the moneys collected in the church’, a churchwarden forced his way into the vestry, where the vicar and the other churchwarden were counting the money.

This time the consistory court supported the churchwarden.  It acknowledged that a churchwarden has not ‘necessarily at all times a right to enter the church or vestry … [but] only … at proper times and for proper purposes … [otherwise] the vicar might lawfully resist his entry’ (p.204).  However, it agreed that, in this case, the churchwarden ‘was clearly entitled to enter the vestry on this occasion without the vicar’s permission for the purpose of assisting in counting a collection made for church purposes’ (p.205).  This was because he was jointly responsible for the disposal of the collection moneys.  Churchwardens must have a right of possession sufficient to discharge their legal duties.

The churchwardens’ duties include the maintenance of order during divine service.  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’.  This suggests a rather more generous view of the churchwardens’ right of possession than that suggested in Ritchings v Cordingley.

The proprietary rights of the parochial church council (‘PCC’) were discussed in the modern case of St. Edmundsbury Diocesan Board of Finance v Clark (No.2) (1973) 3 All England Reports 902.  This concerned a dispute over the access to a church and churchyard.  The benefice of the church was then vacant.  It was argued that, as there was no freeholder, the Church authorities had no locus standi to take legal action in respect of the access way.  However, the court held that the PCC has a right of way to the church and churchyard, for the purpose of discharging its responsibilities thereto.  As the court explained

‘it would be remarkable if the PCC, though having the power and duty to care for and maintain the churchyard itself, had no power and no duty to care for … the [access] way … there  might be a perfectly maintained church and churchyard to which access was impossible … save through a sea of mud’.

Thus the PCC did have the necessary standing to pursue the legal claim.

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).