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Losing One's Faculties: A Personal Reflection on the Workings of the Consistory Court in the Light of the Newman Report

  • Mark Hill (a1)
Extract

Two main functions are performed by the consistory court. The first is the discipline of clergy which is presently the subject of a wholesale review by General Synod following the recommendations of the Hawker Report and has been the subject of much comment, not least in the pages of this Journal. At the time of writing, a draft Measure is still awaited. The second main function is the exercise of the faculty jurisdiction in relation to church buildings, their contents and their surroundings. Central to the effective exercise of this jurisdiction is the ecclesiastical exemption—a pragmatic ‘stand-off’ between central government and certain Christian denominations whereby listed church buildings are not subject to the secular sytem of listed building consent or conservation area control by local authorities. This too has been the subject of recent review. The purpose of this paper is to examine the role of the consistory court in faculty matters and to contribute to the debate which the Newman Report will doubtless engender. The views expressed are, of course, my own and not those of the Ecclesiastical Law Society or any other body.

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1 The jurisdiction is limited to beneficed clergy in ‘conduct’ cases. It is unnecessary in the case of licensed clergy (Revised Canons Ecclesiastical, Canon C12, para 5), nor does it extend to cases involving doctrine, ritual or ceremonial (Ecclesiastical Jurisdiction Measure 1963 (No 1), s 6(1)(a)). See generally Hill, M, Ecclesiastical Law (Butterworths, 1995). pp 220 ff.

2 Under Authority: The Report of the General Synod Working Party Reviewing Clergy Discipline and the Working of the Ecclesiastical Courts (Church House Publishing. 1996) GS 1217.

3 See the submission to the General Synod Working Party by the Ecclesiastical Law Society Working Party on Clergy Discipline and the Ecclesiastical Courts (1996) 4 Ecc LJ 510–520, and its response to Under Authority (1997) 4 Ecc LJ 746–751. It is not here intended to add further to the debate.

4 See generally G H, and Newsom, G L, The Faculty Jurisdiction of the Church of England (2nd edn)(Sweet & Maxwell. 1993). and Hill, . Ecdesiaiical Law. chapter VII (pp 384 ff).

5 Ie the Church of England, the Church in Wales, the Roman Catholic Church, the Baptist Union, the Methodist Church and the United Reformed Church.

6 See A Review of the Ecclesiastical Exemption from Listed Building Control conducted for the Department for Culture. Media & Sport and the Welsh Office by John Newman (September 1997). This document is referred to hereafter as the Newman Report.

7 Or on appeal, from the Secretary of State.

8 See the Newman Report, pp 6–12. and the Planning (Listed Buildings and Conservation Areas) Act 1990 (c 9). s 60(1).

9 SI 1992/2882.

10 SI 1992/2884.

11 SI 1994/1771.

12 See The Ecclesiastical Exemption: What It Is and How It Works (Department of National Heritage and Cadw: Welsh Historic Monuments, September 1994).

13 Newman Report, para 6.26. What such a system might be is not specified although a model akin to that recently introduced for Church of England cathedrals was singled out for particular commendation in the report (see para 7.12). Praise was expressed for the Cathedrals Fabric Commission for England with its professional secretariat and guidance notes, and for individual Fabric Advisory Committees. It is interesting that this tentative suggestion is not included in the report's Summary of Recommendations in chapter 14.

14 Newman Report, para 4.19.

15 Ibid, para 6.12. The report concedes that this would ‘undoubtedly add significantly to diocesan staff costs’ (para 6.7), but no detailed costings are included.

16 Ibid, para 5.15. Note also trees, which may be subject to preservation orders, on which the report is silent.

17 Ibid, paras 5.5 and 6.21.

18 Ibid, para 5.5. The requirement is currently found in the Faculty Jurisdiction Rules 1992, r 12(4)(b).

19 Newman Report, para 5.7.

20 Ibid, para 5.8.

21 Ibid, para 6.15. In practice many DACs already do this. At present English Heritage is in the privileged position of receiving notice of further proposed works in relation to churches which since 1977 have benefited from a gram under the State Aid for Churches Scheme.

22 Ibid, para 5.10.

23 The Summary of Recommendations at ibid, p 120, speaks of ‘certain controversial cases which turned exclusively on conservation issues’. It is difficult to envisage a faculty case which might turn exclusively on conservation issues, although the report mentions the replacement of stained glass windows and of historic doors (para 6.23).

24 Ibid, para 6.23. In the unlikely event that a chancellor may lack expertise in a particular field, recourse may be made to the provisions which already exist for the appointment of a more suitably qualified person as deputy chancellor: see the Ecclesiastical Jurisdiction Measure 1963. s 4 (amended by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s 8(1), Sch 4. para 4). There is no mention of this in the Newman Report.

25 Ibid, para 5.6.

26 Ibid, para 5.11.

27 Note, however, that the chancellor is excluded from the category of ‘any person or body carrying out functions of care and conservation’ which are required to ‘have due regard to the role of a church as a local centre of worship and mission’ under the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 1. See Re St Luke the Evangelist, Maidstone [1995] Fam 1 at 7AC. [1995] 1 All ER 321 at 326. Ct of Arches. His role under the Ecclesiastical Jurisdiction Measure 1963 (No 1). s 6(1)(b). is to ‘hear and determine’ faculty matters, and in so doing his broad discretion is unfettered by section 1 of the 1991 Measure, although such matters will inevitably feature and may well prove determinative.

28 There is a surprising statement in paragraph 6.19 of the Newman Report that amenity bodies which are specially cited ‘can only influence the chancellor’s decision whether or not to hold a court and what conditions to put on a permission’. This bold statement misrepresents the capacity of such bodies successfully to resist the grant of a petition.

29 Ibid., para 6.22. The statutory right of appeal is contained in the Ecclesiastical Jurisdiction Measure 1963 (No 1). s7(2)(a).

30 See in particular Annex C of the Newman Report, which gives specific guidance on alterations to listed buildings.

31 See Re St Helen's, Bishopsgate (26 November 1993, London Consistory Ct. Cameron Ch). noted in (1993) 3 Ecc LJ 256. and approved in Re St Luke the Evangelist. Maidstone [1995] Fam 1. [1995] 1 All ER 321. Ct of Arches.

32 Re St Stephen. Walbrook [1987] Fam 146 at 197G–198B. [1987] 2 All ER 578 at 600. Ct of Ecclesiastical Causes Reserved, per Sir Ralph Gibson. For a discussion of this dichotomy, see Hill, . Ecclesiastical Law. p 397.

33 This phrase was lifted for the judgment of the Dean of the Arches in Re St Mary's. Banburv [1981] Fam 136 at 145C–F. [1987] 1 All ER 247 at 250. Ct of Arches.

34 Historic Buildings and Conservation Areas—Policy and Procedure (23/77 and 8/87 successively): thereafter Planning and the Historic Environment (PPG 15). The history of the emergent secular test is discussed by George Ch in Re St John the Evangelist, Blackheath (September 1998. Southwark Consistory Ct), noted in ‘Recent Ecclesiastical Cases’ at p 217 post.

35 See Re All Saints, Melbourn [1992] 2 All ER 786 at 796. [190] 1 WLR 833 at 843F–844C. Ct of Arches, per the Dean of the Arches. See also Re St Barnabas, Dulwich [1994] Fam 124 at 132C–D, per Gray Ch, and Re St Mary the Virgin, Sherborne [1996] Fam 63 at 76G–77D. [1996] 3 All ER 769 at 781 a-f. Ct of Arches, per the Dean of the Arches: but note Re St Chad, Romily (1997) 4 Ecc LJ 769. Cons Ct. per Lomas Ch. and Re St John the Evangelist, Blackheath (September 1998. Southwark Consistory Ct. George Ch).

36 Re St John the Evangelist, Blaekheath (September 1998. Southwark Consistory Ct. George Ch).

37 See Save Britain's Heritage v Number 1 Poultry Ltd [1991] 2 AII ER 10. [1991] 1 WLR 153. HL.

38 See Re All Saints Melbourn [1992] 2 All ER 786 at 796. [1990] 1 WLR 833 at 843E. Ct of Arches, and Re St Mary the Virgin. Sherborne [1996] Fam 63 at 76G, [1996] 3 All ER 769 at 781a. Ct of Arches.

39 Re St Mary the Virgin. Sherborne [1996] Fam 63 at 77C. [1996] 3 All ER 769 at 781 f, Ct of Arches.

40 This is in marked contradistinction to petitions concerning non-listed churches where it has been stated that the ‘more apt’ approach is that ‘The answer should be “Yes”unless there are good reasons for saying “No”: see Re St James's. New Maiden [1994] Fam 44 at 48H. [1994] 1 All ER 85 at 90. Cons Ct. per Gray Ch.

41 Newman Report, para 6.22.

42 Of the other three, judgment went in its favour in one. and partly so in two. See now also Re All Saints (formerly St Aidan's). Small Heath (June 1998. Birmingham Consistory Ct. Aglionby Ch). noted in ‘Recent Ecclesiastical Cases’ at pp 211 f post.

43 Further, the appeal which it initiated in Re St Mary the Virgin, Sherborne [1996] Fam 63. [1996] 3 All ER 769. Ct of Arches, was unsuccessful.

44 In the period 1991 to 1997 all four consistory courts at which the society appeared went against it. whereas of seven public inquiries five were decided in its favour.

45 Newman Report, para 6.22.

46 In fairness to the Newman Report, both these matters are recognised but accorded less weight than they deserve.

47 Faculty Jurisdiction Rules 1992. SI 1992/2882. r 6(1).

48 Works under ibid., r 12(3), ar expressly excluded by r 6(1).

49 Care of Churches and Ecclesiastical Jurisdiction Masure 1991 (No 1). s 14(5)(a).

50 Ecclesiastical Jurisdiction Measure 1963 (No 1). s 60 (amended by the Church of England (Legal Aid and Miscellaneous Provisions) Measure 1988 (No 1). s 14(1). Sch 2. para 1. and the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 8(1). Sch 4. para 9).

51 Re St Mary the Virgin, Sherborne [1996] Fam 63 at 68F. [1996] 3 All ER 769 at 774b. Ct of Arches.

52 This may include the costs of a hearing. Prudent parochial church councils should include in their budget for the works an allowance for such fees: Re St Mary the Virgin, Sherborne [1996] Fam 63 at 69F. [1996] 3 All ER 769 at 774j 775a Ct of Arches.

53 Re St Mary the Virgin. Sherborne [1996] Fam 63 at 69H. [1996] 3 All ER 769 at 775b. Ct of Arches (emphasis added). Presumably conduct during the hearing adding needlessly to its length might also be reflected in such an order: see Re St Peter, Oundle (1996) 4 Ecc LJ 764. Cons Ct. and Re All Saints (formerly St Aidan's), Small Heath (June 1998. Birmingham Consistory Ct. Aglionby Ch), noted in ‘Recent Ecclesiastical Cases’ at pp 211 f post.

54 Ecclesiastical Jurisdiction Measure 1963 (No 1). s 7(2)(amended by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). 2 8(1). Sch 4. para 6(b)). Such leave may be granted either by the chancellor or by the Dean of the Arches.

55 This is a practice akin to that adopted at planning inquiries. For examples of the power being exercised, see Re St Peter and St Paul, Scrayingham [1991] 4 All ER 411 at 417. [1992] 1 WLR 187 at 193. Cons Ct. For an example of a petitioner being order to make a contribution to the costs incurred by the acting archdeacon, even in the absence of unreasonable behaviour, see Re St John the Evangelist, Blackheath (September 1998. Southwark Consistory Ct). noted in ‘Recent Ecclesiastical Cases’ at p 217 post.

56 I.e. as distinct from the court fees. Curiously, however, the Court of Arches indicated that in this paticular instance it was ‘very unlikely’ that the successful petitioners would have been awarded the costs of legal representation had they been so represented. They appeared by the incumbent.

57 See Re Woldingham Churchyard [1957] 2 All ER 323. [1957] 1 WLR 811. Cons Ct. and Re St Mark's. Haydock (No 2) [1981] 1 WLR 1167. Cons Ct. discussed in Hill, . Ecclesiastical Law. pp 401. 402.

58 SI 1992/2884.

59 See the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 13.

60 See ibid. s 13(4). (5). A detailed discussion of these procedures is beyond the scope of this paper. For a full discussion of these emergency and remedial powers and their practical application, see Hill, . Ecclesiasiical Law. pp 398. 401.

61 Newman Report, para 5.11

62 Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 13(1).

63 Ibid., s 13(11).

64 See the Ecclesiastical Jurisdiction Measure 1963 (No 1). s 81(2) (substituted by the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 (No 1). s 8( 1). Sch 4. para 11).

65 Ecclesiastical Jurisdiction Measure 1963. s 81(3) (as so substituted).

66 Re All Saints, Eccleshall (14 04 1998. Sheffield Consistory Ct). noted at (1998) 5 Ecc LJ 135.

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Ecclesiastical Law Journal
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