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The Ecclesiastical Common Law: A Quarter-century Retrospective

Published online by Cambridge University Press:  05 December 2011

Charles George
Dean of the Arches and Auditor


This article reviews developments in ecclesiastical case law (interpreted widely) over the 25 years since the Ecclesiastical Law Journal was founded, focusing on four areas, in each of which, in the author's view, there have been significant developments: freedom of religion; the constitution of the Church of England; the protection of listed buildings; liturgy, ritual and doctrine. It notes the role of the Journal in reporting consistory court decisions and thus ensuring greater consistency of decision-making. It concludes by mentioning some of the leading cases in various other areas of ecclesiastical law.

Copyright © Ecclesiastical Law Society 2012

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1 For the litigation history, including two appeals to the Court of Arches, see Tyler v UK (Application 21283/93) (1994) EComHR. There have only been two appellate decisions under the CDM: In re King [2009] 1 WLR 873Google Scholar; [2009] PTSR 431, Ch Ct York and In re Gilmore (2011) 13 Ecc LJ 382Google Scholar, Court of Arches.

2 The first consistory court decision of which I am aware that considers the application of the Equality Act 2010 to the provision of facilities for the disabled is Re All Saints' Church, Sanderstead, (2011) 14 Ecc LJ 144Google Scholar, Southwark Cons Ct. An earlier landmark decision in relation to such provision, Re Holy Cross, Pershore [2002] Fam 1, (2002) 6 Ecc LJ 86Google Scholar, Worcester Cons Ct, has the unusual distinction that its key reasoning in para 105 was later adopted by the Court of Appeal.

3 And, of course, any views expressed by the author in this article are expressed in his personal capacity only.

4 For examples of cross-fertilisation see Adam, W, ‘Changing Approaches to the Bishopsgate Questions’ (2003) 7 Ecc LJ 215Google Scholar, cited in In re St Mary, Longstock [2005] All ER (D) 182, Winchester Cons Ct; and Petchey, P, ‘Exhumation Reconsidered’ (2001) 6 Ecc LJ 122Google Scholar, cited in Re Blagdon Cemetery [2002] Fam 299.

5 According to Rivers, J, The Law of Organized Religions (Oxford, 2010), p 339, ‘there is no evidence that [s 13(1)] has had any effect at all on the post-Human Rights Act case-law’CrossRefGoogle Scholar.

6 In re Durrington Cemetery [2001] Fam 33 Chichester Cons Ct; In re Crawley Green Road Cemetery, Luton [2001] Fam 308 St Albans Cons Ct.

7 [2005] UKHL 15; [2005] 2 AC 246 at para 22.

8 [2006] UKHL 15; [2007] 1 AC 100.

9 R (Johns) v Derby City Council [2011] EWHC 375 (Admin) per Munby LJ.

10 R (Watkins-Singh) v Governing Body of Aberdare Girls' High School [2008] EWHC 1865; [2008] ELR 561 (restriction on Sikh girl's wearing a ‘Kara’ (bangle) held not to be justified); R (Imran Bashir) v Independent Adjudicator [2011] EWHC 1108 (Admin) (prison authorities not justified in interfering with Muslim prisoner's religious fasting, even though it prevented him from providing a urine sample required for drug testing).

11 R (E) v Governing Body of JFS (United Synagogue intervening) [2010] 2 AC 728.

12 Ladele v Islington LBC [2009] EWCA Civ 1357; [2010] 1 WLR 955 at paras 52 and 55 per Lord Neuberger MR.

13 McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 at para 27 per Laws LJ. The outcome in McFarlane was probably inevitable in the light of the reasoning in Ladele; but see the perceptive critique in respect of both cases in Sandberg, R, ‘Laws and religion: unravelling McFarlane v Relate Avon Ltd’, (2010) 12 Ecc LJ 361370Google Scholar, including the observation that Article 9 is rendered ‘impotent by allowing other Convention rights to “trump” it with ease’ (p 365).

14 Eweida v British Airways [2010] EWCA Civ 89; [2010] ICR 890. The decision of the Court of Appeal is subjected to a rigorously effective critique in Hatzis, N, ‘Personal religious beliefs in the workplace: how not to define indirect discrimination’, (2011) MLR 287305CrossRefGoogle Scholar. See also the observation, at an earlier stage of the proceedings, in Vickers, L, ‘Indirect discrimination and individual belief: Eweida v British Airways plc’ (2009) 11 Ecc LJ 201Google Scholar, that ‘if our law is to provide adequate protection against religious discrimination, then it should protect the manifestation of individual beliefs’.

15 R (Johns) v Derby County Council [2011] EWHC 375 (Admin) at para 109 per Munby LJ. The case of the claimants was ‘couched in extravagant rhetoric’, inviting the judicial riposte it received (see especially paras 32–36). It is unfortunate that recent cases on religious freedom have concentrated on the divisive topics of civil partnership and same-sex relationships.

16 Coronation Oaths Act 1688, s 3.

17 R (Johns) v Derby County Council at para 39. In R v Taylor (1676) 1 Vent 293, Sir Matthew Hale LCJ said that ‘Christianity is parcel of the laws of England’.

18 R (Johns) v Derby City Council at para 102.

19 [2011] ECtHR 30814/06 at para 2.3. By a majority the Grand Chamber upheld the display of crucifixes in Italian schoolrooms. For very different perspectives see Ronchi, P, ‘Crucifixes, margins of appreciation and consensus: the Grand Chamber ruling in Lautsi v Italy’, (2011) 13 Ecc LJ 287297Google Scholar, and Witte, J, ‘Lift high the cross? An American perspective on Lautsi v Italy’, (2011) 13 Ecc LJ 341343Google Scholar.

20 See Sandberg, R, ‘The right to discriminate’, (2011) 13 Ecc LJ 157181Google Scholar; Dingemans, J, ‘The need for a principled approach to religious freedoms’, (2010) 12 Ecc LJ 371378Google Scholar; and Rivers, The Law of Organised Religons, pp 316–347.

21 Applications to the ECtHR in Ladele (Application no 51671/10), McFarlane (Application no 36516/10), Eweida (Application no 48420/10) and Chaplin (Application no 59842/10) have been ‘communicated’ to the UK government for its observations. The facts in Chaplin were very similar to those of Eweida.

22 R v Attorney-General ex parte Reverend Paul Stewart Williamson [1997] EWHC Admin 691, per Jowitt J at para 3.

23 Church of England (Assembly) Powers Act 1919, s 4.

24 Briden, T and Hanson, B, Moore's Introduction to English Canon Law (London, 1992), p 7Google Scholar.

25 It may be more accurate to describe the Enabling Act as a ‘new way of enacting primary legislation’ rather than as delegated, or sub-primary, legislation: see R (Jackson) v Attorney-General [2005] UKHL 56; [2006] 1 AC 262 in relation to the legal status of truncated procedures under the Parliament Act 1911.

26 The relevant dates were: 12 July 1993: the Ecclesiastical Committee determined to lay the draft Measure before Parliament, which was done later that month; 29 October and 2 November 1993: the requisite resolutions of the House of Commons and the House of Lords were passed approving the Measure; 5 November 1993: the Measure received the Royal Assent; 1 February 1994: the Measure came into force pursuant to an order of both Archbishops appointing that day for that purpose; 22 February 1994: Canon C4B was promulgated by General Synod to implement the Measure.

27 R v Ecclesiastical Committee of both Houses of Parliament ex parte The Church Society (unreported, 28 October 1993). The challenge failed on the substantive point, it being held that the Measure was within s 3(6) of the Enabling Act.

28 Williamson v Archbishop of Canterbury and others [1996] EWCA Civ 600.

29 Ibid, p 5. The first Court of Appeal judgment (R v Archbishops of Canterbury and York, ex parte Williamson) is only reported in (1994) Times, 9 March, but the transcript is reproduced in the first edition of M Hill, Ecclesiastical Law (Butterworths, 1995) pp 77–81.

30 Williamson v Archbishop of Canterbury, p 7.

31 Ibid, p 11.

32 Ibid, p 8. I have omitted the words ‘which has’, which appear in the transcript in the first sentence after ‘by the Measure’. In 1997 Williamson was declared a vexatious litigant. In this context, one notes Simon Brown LJ's comment, p 12: ‘I express no view whatever on what the applicant contends to be the theological heresies arising. I say with confidence, however, that his submissions to this court were full of legal heresies’.

33 Aston Cantlow and Wilmcote with Billesley PCC v Wallbank [2001] EWCA Civ 713; [2002] Ch 51.

34 [2003] UKHL 37; [2004] 1 AC 546.

35 Maitland, F, The Constitutional History of England (Cambridge, 1950), p 526Google Scholar.

36 Aston Cantlow, at para 154.

37 Ibid, at para 61.

38 HRA, s 6(3)(b).

39 Maitland, The Constitutional History of England, pp 512 and 525.

40 Aston Cantlow, at paras 63–64 per Lord Hope; at para 16 per Lord Nicholls; at paras 89–90 per Lord Hobhouse; at para 171 per Lord Rodger. This part of the reasoning was critical to the later decision in YL v Birmingham City Council [2007] UKHL 27; [2008] AC 95.

41 Aston Cantlow, at para 91 per Lord Hobhouse; at para 72 per Lord Hope; at para 134 per Lord Scott.

42 Lord Hobhouse at ibid, para 88 and Lord Rodger at para 179 could identify no public function to make it a hybrid public authority; Lord Scott at paras 130–132 considered that the enforcement of chancel repair liability was itself a public function, for which purpose therefore the PCC was a hybrid public authority; Lord Nicholls at para 16 and Lord Hope at para 63 did not find it necessary to reach a conclusion, since the enforcement of chancel repair liability was a private act in respect of which it would not be a hybrid public authority in any event, as a result of HRA, s 6(5).

43 Subsequent litigation against the Wallbanks regarding the assessment of repair liability led to a satisfactory outcome for the Parochial Church Council, and for others in a similar position: Aston Cantlow and Wilmcote with Billesley PCC v Wallbank (2007) Times, 21 February.

44 Aston Cantlow, at para 86 per Lord Hobhouse; at para 170 per Lord Rodger.

45 Re All Saints’ Church, Sanderstead at paras 59–74.

46 The Equality Act, s 29(7) provides that:

a duty to make reasonable adjustments applies to – (a) a service-provider … (b) a person who exercises a public function that is not the provision of a service to the public or a section of the public.

By section 31(4), ‘A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998’.

47 Cole v Police Constable 443A [1937] 1 KB 316 at 333. In Aston Cantlow at para 86 Lord Nicholls mentioned ‘that parishioners have certain rights to attend church services and in respect of marriage and burial services’ [emphasis added].

48 Re All Saints Church, Sanderstead, at para 66.

49 Ibid, at paras 62–63.

50 HRA 1998, ss 7(1)(a) and (b), and (6).

51 Ibid, ss 7(1) and (7).

52 ‘… a local authority cannot bring itself within the definition of a “non-governmental organisation”’: R (Westminster City Council) v Mayor of London [2002] EWHC 2440 (Admin); [2003] LGR 611 at para 96 per Maurice Kay J.

53 Newsom, GFaculty Jurisdiction of the Church of England (London, 1992), p 10Google Scholar.

54 For example, in Re St John the Evangelist, Blackheath (1998) 5 Ecc LJ 217Google Scholar, Southwark Cons Ct, the Area Bishop of Woolwich gave evidence that the concept of a robed choir at that church was ‘otiose and anachronistic’, as did the vicar that ‘coffee after the services and relaxed chat have proved over the years to be of inestimable value in making newcomers feel at home and willing to return’.

55 Fresh Expressions encourages new forms of church for a fast-changing world, working with Christians from a variety of denominations and traditions. Messy Church is a core ministry of the Bible Reading Fellowship, with some 100,000 people attending Messy Church sessions in 2011.

56 For a perspective as at the turn of the century see Cameron, S, ‘Re-ordering historic churches’, (2001) 6 Ecc LJ 2635Google Scholar.

57 Newsom, Faculty Jurisdiction, p 323.

58 [1985] 2 All ER 611 Oxford Cons Ct at 618. Boydell Ch soon after appeared as leading counsel for the successful appellant in In re St Stephen's, Walbook [1987] Fam 145 where a similar issue arose.

59 Ibid, at 173 per the Bishop of Chichester.

60 Ibid at 192. See also p 198. The Court of Ecclesiastical Causes Reserved expressly rejected a higher test of ‘necessity’ in circumstances where ‘Listed building consent is given every day in ordinary cases which fall short of “clearly proved necessity”’, per Sir Anthony Lloyd at 198. In In re St Mary's, Banbury [1987] Fam 136 at 145 reference was made to a necessity test, something only later incorporated into secular planning guidance.

61 [1995] Fam 1 at 7.

62 See also the replacement PPG 15 (September 1994) and most recently PPS 5 (March 2010). The latter will be replaced by the National Planning Framework. As noted in Re St John the Evangelist, Blackheath at para 10: ‘Thus, whilst secular listed building control may still be more tolerant than the faculty jurisdiction of change that is merely desirable rather than necessary, it is clear that the differences of approach have lessened’.

63 In re St Nicholas, Sevenoaks [2005] 1 WLR 1011 at para 24, referring to PPG 16, since replaced.

64 The Operation of the Ecclesiastical Exemption and Related Planning Matters for Places of Worship in England: guidance (Department for Culture, Media and Sport, July 2010).

65 [2011] Fam 1 at para 50, where express reference was made to the Code of Practice attached to the same DCMS guidance.

66 Re St Mary Magdalene, Reigate (29 September 2010, unreported) Southwark Cons Ct at paras 44 and 174. This was an Interim Judgment, but the final judgment (13 July 2011, unreported) dealt solely with outstanding matters.

67 Re Holy Cross, Pershore at para 93. Mynors Ch is a former local planning officer.

68 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 1. In In re St Luke the Evangelist, Maidstone at 7, the Court of Arches (rather surprisingly) held that s 1 ‘cannot be said to apply to chancellors’, even though ‘it would have added nothing to the existing duty and practice of chancellors’.

69 Re St Mary Magdalene, Reigate at para 188. Petchey Ch found such ‘direct conflict’ and said that he shared the concern of the petitioners ‘that the church “plant” of the past should not inhibit the mission of the church in the present’.

70 In re Great Malvern Priory [2009] PTSR 1408 Worcester Cons Ct at paras 33 and 19. See also the conventional treatment of burden of proof in In re St Mary's Churchyard, White Waltham (No 2) [2010] PTSR 1689 Oxford Cons Ct at 27.

71 In re St Helen's, Bishopsgate London Cons Ct (26 November 1993, unreported). The three questions are:

  1. (1)

    (1) Have the petitioners proved a necessity for some or all of the proposed works, either because they are necessary for the pastoral wellbeing of St. Helen's or for some other compelling reason?

  2. (2)

    (2) Will some or all of the works adversely affect the character of the church as a building of special architectural and historic interest?

  3. (3)

    (3) If the answer to (2) is yes, then is the necessity proved by the petitioners such that in the exercise of the court's discretion a faculty should be granted for some or all of the works?

72 In re St Luke the Evangelist, Maidstone at 9. Cameron Ch was a member of that Court of Arches.

73 Re St John the Evangelist, Blackheath at para 12.

74 See for example Re Holy Cross, Pershore at para 78.

75 In Re Great Malvern Priory at para 34 the example is given of works ‘which are only just necessary, or only necessary when considered from a certain point of view, or which are arguably needed but not necessarily in the form or at the location proposed’.

76 But see Re St Mary, Newick (2009) 11 Ecc LJ 127Google Scholar, Chichester Cons Ct, where Hill Ch said of ‘Necessity’ that it ‘should be read in its clear context which imports the wider concept of pastoral well-being or some other compelling reason’.

77 A single reference to ‘necessity’ survives in HE9.2 of PPS 5, which itself is soon to be replaced.

78 In re St Mary the Virgin, Sherborne [1996] Fam 63 at 77–78. Again Cameron Ch was a member of the Court.

79 PPS 5 (2010), Policy HE9.1.

80 In re St Luke the Evangelist, Maidstone, at 8.

81 Re Great Malvern Priory at para 43; see also Mynors, C, ‘Ecclesiastical buildings: constraints and opportunities’, (2009) 11 Ecc LJ 279280Google Scholar.

82 Re Great Malvern Priory at para 40; also Mynors, ‘Ecclesiastical Buildings’, p 279.

83 In re St Luke the Evangelist, Maidstone at 8.

84 (2001) 6 Ecc LJ 172Google Scholar, Sheffield Cons Ct at para 24.

85 Re Great Malvern Priory at para 42.

86 In re St Mary's Churchyard, White Waltham (No 2) at paras 24–29.

87 Re St Michael and All Angels, Great Torrington [1985] Fam 81; In re St Stephen's, Walbrook [1987] Fam 146.

88 R Bursell, Liturgy, Order and the Law (Oxford, 1997), p vii.

89 In re St John the Evangelist, Bierley [1989] Fam 60, Bradford Cons Ct at 70.

90 Re All Saints’ Church, Sanderstead at para 56, n 29.

91 [1968] P 495, Gloucester Cons Ct.

92 [1985] 3 All ER 670, Southwark Cons Ct.

93 [1995] Fam 50, Durham Cons Ct.

94 [1995] Fam 254, Durham Cons Ct.

95 Ibid, at 265.

96 Ibid, at 262.

97 Re St Thomas, Pennywell at 69.

98 In re St Barnabas, Kensington [1991] Fam 1, London Cons Ct.

99 Re All Saints’ Church, Sanderstead at paras 42–58. The key matters were considered to be the revocation of Canon 27 of 1603, together with the wording of the new Canon B9 para 2 and the guidance as to ‘Posture’ given in Common Worship (2000).

100 To be found at the end of the Order for Holy Communion in the Book of Common Prayer.

101 (1857) Moo Special Rep 133, a decision of the Judicial Committee of the Privy Council.

102 See EJM, s 45(3), referred to in In re St Stephen's, Walbrook at 167 per the Bishop of Chichester and adverted to at 193 by Sir Anthony Lloyd.

103 In re St Stephen's, Walbrook at 152.

104 Ibid, at 154.

105 Ibid, at 168 and 170 per the Bishop of Chichester; at 194 per Sir Anthony Lloyd. The more surprising aspect of the appeal decision was the unanimous reversal of the chancellor's conclusions on the aesthetic and architectural considerations.

106 [2002] Fam 299.

107 Ibid, at para 35, rather than the test in In re Christ Church, Alsager [1999] Fam 142 at 149.

108 Re Blagdon Cemetery at para 22.

109 Ibid, at paras 20–21.

110 Ibid, at para 23. For a fuller and updated version see Hill, C, ‘A note on the theology of burial’, (2004) 7 Ecc LJ 447451Google Scholar. Judgments that have referred to parts of this note not reproduced in Blagdon include In re Holy Trinity, Bosham [2004] Fam 125, Chichester Cons Ct, at 135, and Re St Andrew, Alwalton (2011) 13 Ecc LJ 374Google Scholar, Ely Cons Ct, the latter of which contains a detailed review of the human rights implications of exhumation.

111 See McGregor, A, ‘Religion, doctrine and ecclesiastical courts’, (2011) 13 Ecc LJ 333341Google Scholar.

112 This is the subject of my article Shared use of church buildings or is nothing sacred?’, (2002) 6 Ecc LJ 306317Google Scholar, but there have been further developments since that time, particularly in relation to mobile phone equipment: see In re Bentley Emmanuel Church, Bentley [2006] Fam 39 and In re St Peter and St Paul's Church, Chingford [2007] Fam 67 (both decisions of the Court of Arches).

113 Wright v Ingle (1885) 16 QBD 400 per Bowen LJ.

114 In re St Peter and St Paul's Church, Chingford at para 23. This tension was referred to in an Opinion of the Legal Advisory Commission, Wedding receptions on church premises (2011).

115 See Rivers, The Law of Organized Religions pp 116–117 for a critical analysis of Percy v Board of National Mission for the Church of Scotland [2005] UKHL 73; [2006] 2 AC 28.

116 Probably the most erudite consistory court judgment of the 25-year period is that of Bursell Ch in In re St Mary the Virgin, Oxford [2009] Fam 38, Oxford Cons Ct (regarding a memorial tablet to Reformation martyrs, including unpardoned traitors), another example of increasing flexibility and tolerance in ecclesiastical law.

117 In re Welford Road Cemetery, Leicester [2006] Fam 62, and In re Hutton Churchyard, Hutton [2009] PTSR 968 (both Court of Arches); Re Church of St Paul, Drighlington (2007) 9 Ecc LJ 239Google Scholar, Wakefield Cons Ct.

118 In re St Peter's, Draycott [2009] Fam 93 Ct of Arches; Re St Michael and All Angels, Withyham (2011) Times, 27 July, Chichester Cons Ct; Re St Ebbe with Holy Trinity and St Peter Le Bailey, Oxford (2012) 14 Ecc LJ 143Google Scholar, Oxford Cons Ct.

119 In re Blagdon Cemetery.

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