Clergy employment: Church of England rector wins appeal on jurisdictional issue

An Employment Appeal Tribunal (Mrs Justice Cox, sitting alone) has just handed down judgment in Sharpe v Worcester Diocesan Board of Finance Ltd & Anor (Jurisdictional Points : Worker, employee or neither) [2013] UKEAT 0243 12 2811. The question before the EAT was whether the claimant, a priest in the Church of England, was working under a contract of employment or was alternatively a “worker” within the meaning of s. 43K Employment Rights Act 1996, as amended, after he was appointed as Rector in the Teme Valley South Benefice in the Diocese of Worcester.

Mr Sharpe presented two claims to the Employment Tribunal, complaining that he had suffered detrimental treatment as a result of making protected disclosures and that he was then constructively and unfairly dismissed. After a pre-hearing review the ET held that there was no jurisdiction to determine his claims because there was no contract in existence between the parties and, further, Mr Sharpe did not fall within the statutory definition of “worker”. After oral argument, the appeal was stayed pending the decision of the Supreme Court in Methodist Conference v Preston [2013] UKSC 29. The parties subsequently filed further written submissions on the effect of that decision.

In the EAT Cox J took the view that

“Following the decisions in both Percy and Preston it is now abundantly clear that cases concerning the employment status of a minister of religion cannot be determined simply by asking whether the minister is an office holder or is in employment. As the Employment Judge recognised in this case, an individual appointed to work in a particular post may be both the holder of an office and an employee working under a contract of service. Whether there is payment of a salary, whether it is fixed, and whether the worker’s duties are subject to the control of the employer are important matters to be considered in determining this issue” (para 146).

As to the distinctions between the facts of the present case and Preston, there were a number of important differences between the rules and practices of the Methodist Church and those of the Church of England – not least that there is nothing in the Church of England that appears comparable with the process of full connexion and “stationing” in the Methodist Church (paras 159 & 160).

Cox J concluded that the ET’s decision that Mr Sharpe was not a “worker” within the meaning of s 230(3)(b) had been arrived at in error. She allowed the appeal and remitted the case to the Employment Tribunal for a fresh hearing “in accordance with the legal principles set out in this judgment” (para 244).


I have posted a longer analysis of the judgment and the issues here.

Double rooms, gay couples, Christians and the clash of rights


In Bull & Anor v Hall & Anor [2013] UKSC 73 the Supreme Court has unanimously dismissed the appeal of Mr and Mrs Bull against the Court of Appeal’s ruling that they had discriminated unlawfully against Mr Hall and Mr Preddy, a couple in a civil partnership, when they refused them a double-bedded room in their private hotel on the grounds that, as Christians, they believed that sexual activity should take place only within the context of (heterosexual) marriage. The appeal had been linked with Black v Wilkinson [2013] EWCA Civ 820, a case on very similar facts (which we noted at the time), save that it concerned a bed & breakfast establishment rather than a private hotel and the couple were not in a civil partnership: permission had been given to Mrs Wilkinson to appeal to the Supreme Court so that the two cases could be heard together but she decided not to pursue her appeal further.

The regulatory framework 

Regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007 (“the Regulations”). makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful. Regulation 3 defines “discrimination” and Regulation 3(1) states that direct discrimination exists where A treats B less favourably than others on the ground of B’s sexual orientation. Regulation 3(3) states that indirect discrimination exists when  A applies a general policy or practice to B and others not of B’s sexual orientation which puts B at a particular disadvantage compared to those others, and where the policy or practice is not reasonably justified by reference to matters other than B’s sexual orientation. Regulation 3(4) provides that for Regulations 3(1) and 3(3), civil partnership and marriage are not to be treated as materially different.

The judgments

The leading majority judgment was given by Lady Hale DPSC, with supplementary judgments from all the other members of the Court. The Court was divided overall as to whether the discrimination complained of was direct or indirect (because if it were the latter it would have been possible for the appellants to argue justification).  Lady Hale, Lord Kerr and Lord Toulson held that the appellants’ policy constituted direct discrimination on grounds of sexual orientation. Lord Neuberger PSC and Lord Hughes held that the appellants’ policy constituted indirect discrimination; however, since they also concluded that the indirect discrimination complained of could not be justified, they, too, dismissed the appeal. 

Lady Hale set out the problem very starkly. First, the case was a dispute between two sets of individuals, all four of whom had a protected characteristic under the legislation; and she noted that it was “a curiosity of the case” that the EHRC had pursued it on behalf of parties with one protected characteristic against parties with another. Secondly, there were “competing human rights in play”: the right of Mr and Mrs Bull under Article 9 ECHR to manifest their religion without unjustified limitation by the state and the right of Mr Hall and Mr Preddy under Articles 14 & 8 to enjoy their right to respect for their private lives without unjustified discrimination on grounds of sexual orientation.

Commenting on the Bulls’ complaint that instead of prosecuting Mr Hall’s and Mr Preddy’s case against them the Equality and Human Rights Commission should have taken a more neutral stance and sought merely to intervene, Lady Hale said that that contention

“… misunderstands the nature of the case. If Mr Preddy and Mr Hall were hotel keepers who had refused a room to Mr and Mrs Bull, because they were Christians (or even because they were an opposite sex couple), no doubt the Commission would have been just as ready to support Mr and Mrs Bull in their claim. Each of these parties has the same right to be protected against discrimination by the other” (para 4).

In the present case there were three issues at stake:

  • had the respondents suffered direct discrimination?
  • if not, had they suffered indirect discrimination and, if so, could it be justified? and
  • should the Regulations be read down to be compatible with the right of the appellants  to manifest their religious beliefs under Article 9 ECHR?

On the first point, Lady Hale, Lord Kerr and Lord Toulson held that the appellants’ policy constituted direct discrimination on grounds of sexual orientation. On the second, the Court unanimously held that if the appellants’ policy constituted indirect discrimination it was not justifiable. On the third, the Court unanimously held that though the Regulations engaged Article 9 ECHR (para 44), the interference with the appellants Article 9 rights was a justified and proportionate protection of the rights of others (para 51) and there was therefore no breach of Article 9 ECHR which would require the Regulations to be read down (para 42).

The reasoning

Lady Hale noted that in Black v Wilkinson at para 21, Dyson MR had confessed to “some difficulty” in agreeing that the decision in James v Eastleigh Borough Council [1990] 2 AC 751 (which was about free entry to the Council’s swimming pool for those who had reached state pension age: 60 for women but 65 for men) obliged him to conclude that there had been direct discrimination in Preddy v Bull. Lord Dyson’s view was that it was not a case of direct discrimination against a homosexual couple on grounds of sexual orientation, since there were other unmarried couples who would also be denied accommodation on the ground that they, too, were unmarried (para 23). In her view, however, it made a difference that the couple were civil partners (para 25):

“Does it make a difference that this couple were in a civil partnership? In my view, it does. The concept of marriage being applied by Mr and Mrs Bull was the Christian concept of the union of one man and one woman. That is clear from the reference to “heterosexual married couples” in the statement of policy which was current at the time; it is even clearer from the amended policy, which read ‘… out of a deep regard for marriage (being the union of one man to one woman for life to the exclusion of all others)…’ …

Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same-sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state…” (paras 25 & 26).

“With or without Regulation 3(4)”, Lady Hale could not see how discriminating between married couples and civil partners could be “anything other than direct discrimination on grounds of sexual orientation” (para 29).

It was not disputed that if the Bulls’ behaviour was not direct discrimination it was indirect discrimination within the meaning of Regulation 3(3). The Bulls sought to justify their policy by reference to their deeply-held belief that sexual intercourse outside marriage was sinful. Lady Hale was prepared to accept that their belief could encompass issues other than sexual orientation because it covered all kinds of unmarried couple. But, in her view, it would be hard to find that a belief that sexual intercourse between civil partners was sinful engaged a “matter other than [their] sexual orientation” because, by definition, such sexual intercourse had to be between persons of the same sex (para 35). So it was difficult to see how such discrimination against a same-sex couple in a civil partnership could ever be justified. Moreover, Parliament had created the institution of civil partnership precisely to give same-sex partners the same legal rights as partners of the opposite sex:

“They are also worthy of the same respect and esteem. The rights and obligations entailed in both marriage and civil partnership exist both to recognise and to encourage stable, committed, long-term relationships. It is very much in the public interest that intimate relationships be conducted in this way. Now that, at long last, same-sex couples can enter into a mutual commitment which is the equivalent of marriage, the suppliers of goods, facilities and services should treat them in the same way” (para 36: emphasis added).

As to the issue of compatibility with Article 9, she took the view that sexual orientation was a core component of personal identity which required fulfilment through relationships with others of the same orientation. Homosexuals had long been denied the possibility of fulfilling themselves through relationships with others: an affront to their dignity as human beings which the law had now recognised. But, given the continuing legacy of centuries of discrimination and persecution, it was understandable that Strasbourg required “very weighty reasons” to justify discrimination on grounds of sexual orientation:

“It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion” (para 53).

Lord Neuberger could not see why the fact that Mr Preddy and Mr Hall were civil partners altered Lady Hale’s conclusion that, had the two men not been in a civil partnership, the discrimination would have been indirect. Agreeing with him, Lord Hughes set out at para 88 the steps for a finding of direct discrimination, as follows:

“(i) The defendants treated the claimants less favourably than they would have treated a married couple.

(ii) There is no material difference between civil partners and married people: Regulation 3(4).

(iii) Therefore the only distinction between a married couple and civil partners is sexual orientation.

(iv) Sexual orientation is therefore the ground for (reason for) the less favourable treatment.

(v) Thus this is direct discrimination on grounds of sexual orientation”.

In his view, the flaw in the logic came at step (iv). The claimants, as civil partners, were a subset of the unmarried. There were two other subsets of the unmarried: a same-sex couple not in a civil partnership and an opposite-sex unmarried couple. The appellants treated all three subsets the same; and if their treatment of the first two groups was on grounds that they were not married, it was difficult to see how their treatment of civil partners could then be turned into less favourable treatment on grounds of sexual orientation: “The reality is that it is on grounds of being unmarried for all of them” (para 91).

However,  because being married was an impossibility for same sex-couples, in the case of both same-sex subsets the defendants’ practice amounted to indirect discrimination on grounds of sexual orientation within the terms of Regulation 3(3)(b) and (c). It could not be justified under Regulation 3(3)(d) nor could it be saved by reliance on Article 9 (para 93).


Whether the discrimination complained of was direct or indirect turns on whether or not Lady Hale’s contention that civil partnership is “indistinguishable from the status of marriage in United Kingdom law” in almost every other respect bar the name. That proposition is at least arguable: for if the two are for all practical purposes the same, what was the point of the Marriage (Same Sex Couples) Act 2013? And it is very difficult to dismiss the “three subset” approach of Lord Hughes.

But whether, on the facts, the discrimination was direct or indirect, it is impossible to see how it could have been justified. The root of the case, so far as the clash of rights is concerned, is surely this: Mr Hall and Mr Preddy were not providing a service to Mr & Mrs Bull: Mr & Mrs Bull were providing a service to Mr Hall and Mr Preddy. And once one is in the position of service provider, one has to provide that service objectively and without discrimination.

Next question: will the Bulls seek to take their case to Strasbourg?


See also Rosalind English’s post at UKHRB: Supreme Court upholds gay discrimination ruling in hotel case and Alasdair Henderson’s subsequent post: Gay discrimination and Christian belief: Analysis of Bull v Hall in the Supreme Court

Cite this article as: Frank Cranmer, "Double rooms, gay couples, Christians and the clash of rights" in Law & Religion UK, 28 November 2013,


Richard III Reburial – Open the dressing-up box?

In what should have been a timely story [1], the BBC carried the item – Giving Richard III a reburial fit for a medieval king – suggesting that based upon research into the reconstruction of “how an authentic medieval reburial service should be conducted”, “[t]he first glimpse of how Richard III could be reburied has been revealed”. The author of the work, Dr Alexandra Buckle, is described as an expert in medieval music and liturgical adviser to the committee planning the reburial of Richard III. The basis for this work is outlined on her blog, in which she describes the ceremony used for Richard Beauchamp, Earl of Warwick, a contemporary of Richard III, who was reburied in 1475 nearly 40 years after his death.

In view of the associated theology, it is hardly surprising to learn that the reburial service was different from that of the initial burial [2] , and many of the elements of the Richard Beauchamp’s reburial service are still components of a present-day requiem mass: choirs; incense; sprinkling with holy water, although these are seldom followed by a banquet at which guests dine on capons, cygnets, herons and rabbits.

In an earlier post we noted the Press Release issued by Leicester Cathedral on 12th September which stated:

“If the identity of the remains is confirmed, Leicester Cathedral will continue to work with the Royal Household, and with the Richard III Society, to ensure that his remains are treated with dignity and respect and are reburied with the appropriate rites and ceremonies of the church.”

and a suggestion in the Catholic Herald that

“[t]he ‘appropriate’ rites would surely be a Catholic funeral with a full Requiem Mass, and only a Catholic church will do for Richard’s tomb.”

We described the requiem that was held for the sailors of Henry VIII’s ship, Mary Rose, which sank in the Solent in 1545. Although the sinking was post-Reformation it was before the introduction of the Book of Common Prayer at a time when the liturgy consisted of having lessons and some prayers read in English. The Catholic Herald reported the ecumenical approach to the requiem held in Portsmouth’s Anglican Cathedral, for which was decided to use the Sarum Rite – which is very similar to the Tridentine Rite of the Mass – and music by the contemporary composer John Tavener, who died in the year that the Mary Rose sank. (In that connexion it may be worth pointing out that the Provost of Portsmouth at the time, David Stancliffe, is both an eminent liturgical scholar and an early music specialist of note.)  However, it was necessary to seek the assistance of the Cathedral of the Advent, Alabama, US, to secure vestments similar to those used at funerals in the 16th century.


In a recent Nooks and Corners column in Private Eye, No.1351, 18-31 October, commenting on the proposed structural changes to Leicester Cathedral, ‘Piloti’ observed

“it is odd that so much passion has been engendered about which Anglican church should house the body of a medieval Catholic monarch who was scarcely a national hero or founding father. As far as the Dean and Chapter was concerned, what mattered was ‘the possibility of the cathedral and its surroundings becoming a tourist attraction,’”


“for all their ideas about dragging the cathedral into the 21st century, the Dean and Chapter are behaving like their superstitious medieval forbears, for every pre-Reformation cathedral needed a prominent shrine to rake in money from the pilgrims”.

A similar argument might be applied to the reconstruction of an “authentic” reburial service. As with the Cathedral’s proposed structural changes, which are now subject to further consideration following last month’s decision of the Cathedrals Fabrics Commission for England (CFCE), the back-stop is the relevant secular and ecclesiastical legislation.

On the conduct of the service, section 13, Burial Law Amendment Act 1880 c. 41, Relief of clergy of Church of England from penalties in certain cases, states

“It shall be lawful for any minister in holy orders of the Church of England authorised to perform the burial service, in any case where the office for the burial of the dead according to the rites of the Church of England may not be used, and in any other case at the request of the relative, friend, or legal representative having the charge of or being responsible for the burial of the deceased, to use at the burial such service .., as may be prescribed or approved of by the Ordinary, without being subject to any ecclesiastical or other censure or penalty.”

For the liturgy, since no provisions are included in the Book of Common Prayer or by the General Synod under Canon B 2, the form of service used will be subject to Canon B4: Of forms of service approved by the Convocations, Archbishops or Ordinary for use on certain occasions, and Canon B 38: B 38 Of the burial of the dead. In Liturgy, Order and the Law, [1996, Clarendon Press, Oxford], Bursell notes that despite the generality of para.2 of Canon B 5: Of the discretion of ministers in conduct of public prayer which states:

“The minister having the cure of souls may on occasions for which no provision is made in The Book of Common Prayer or by the General Synod under Canon B 2 or by the Convocations, archbishops, or Ordinary under Canon B 4 use forms of service considered suitable by him for those occasions and may permit another minister to use the said forms of service”,

in relation to burial, this must be read in conjunction with para.2 of Canon B 38, which requires the approval of the ordinary or General Synod. However, in the case of the reburial of Richard III, it would be unusual if the ordinary were not involved. More importantly, however would be a reference in prayers for the dead to the Roman Catholic doctrine of purgatory [3], which is contrary to Article XXII of the Thirty Nine Articles of Religion.

Clearly, a balance needs to be struck between designing a service of reburial for a Catholic former English king in an Anglican Cathedral in 2014, and the reconstruction of events more relevant to the time of his death in 1485. In February this year Digitalnun observed:

“Richard III knew neither the Novus Ordo nor the Tridentine rite, so I suppose a case can be made for the Sarum Rite or that of York, or even the Dominican Rite … currently used at Holy Cross Priory, Leicester, geographically closest to the place of original burial),”

pointedly adding

“I think Richard would want us to pray for his soul, however his remains are re-interred.”

[1] The judicial review, due to begin on 26 November 2013, was adjourned after judges decided Leicester City Council should also be a defendant in the case, rather than an interested party, and will resume in 2014.

[2] However, this is not reflected in present CofE canons, which merely refer to “burial”

[3] 14 Halsbury’s Laws of England (4th Edn) at para. 1044.

Article 6 ECHR and restitution of church property in Romania

In 1948 the Romanian Greek-Catholic Church [Biserica Română Unită cu Roma, Greco-Catolică] was abolished by Decree No. 358/1948. Its members were obliged to adhere to the Romanian Orthodox Church and its property was transferred to the Orthodox Church by Decree No. 177/1948. After the fall of the Ceaușescu regime in 1989, Decree No. 358/1948 was repealed and some of the Church’s properties, including the cathedrals of Cluj, Blaj, Lugoj and Oradea, have since been restored to its ownership; however, much of the original property remains in Romanian Orthodox or Government hands. Continue reading

Jersey safeguarding inquiries: update

On 22 November 2013 the Bishop of Winchester, the Rt Revd Tim Dakin, issued a statement providing an update on the ongoing Jersey safeguarding inquiries. This indicates that:

  • the investigation into a safeguarding complaint in the Deanery of Jersey, conducted by former High Court Judge Dame Heather Steel, is in the process of being finalized;
  • the Bishop has received legal representations from an interested party requiring him to undertake not to release the report to any person. On the basis of legal advice, he has agreed to comply with this request and is currently unable to publish the report or provide further information about the representations that have been made;
  • based upon Dame Heather’s findings to date, the Bishop will not be taking disciplinary action against any member of the clergy in relation to the handling of the safeguarding complaint in question or the subsequent review process;
  • “in order to move us forward”, he sought the support of the Archbishop of Canterbury to initiate a pastoral visit to the Channel Islands so that a fresh perspective could be taken on safeguarding;
  • in view of the Islands’ many areas of common interest in both the process and the outcome, the Dean and Lieutenant Governor of Guernsey have been informed of the latest developments; and
  • the Diocese has sought expert advice from health professionals and specialist charities and made provision to help support HG, the victim at the heart of the original complaint, through a third party – but these are yet to be accepted.

The pastoral visit will be conducted in December jointly by the Rt Revd Nigel Stock, Bishop at Lambeth, and the Rt Revd Trevor Willmott, Bishop of Dover, and has the Archbishop of Canterbury’s full support. They will meet local church leaders and Island authorities from both Deaneries, in order to help understand how the current situation may be progressed, and report back to the Bishop of Winchester by the end of the year.


In view of the sensitive nature of the Inquiry, the present legal constraints, and unfinished nature of Dame Heather’s report, there is a clearly a limit as to what details the diocese can place in the public domain.[1]  It would, therefore, be unhelpful to attempt to interpret this incomplete information or to speculate on possible outcomes. However, the recent statement appears to be consistent with the position outlined the Diocese Press Release of 28 April 2013 in which the Bishop is quoted as saying:

“[s]afeguarding must always be of paramount concern and is a vital part of the Church’s mission. We will now press ahead with the Visitation and Investigation and see them through to their conclusions, as we all have important lessons to learn. At the heart of this matter is safeguarding the vulnerable who have frequently been let down by the Church”.

and with regard to the associated legal issues, it added

“[t]he Bishop and the Dean have also agreed that, in the light of these recent events, there are areas in Jersey Canon Law which would benefit from further review and they are committed to working together as necessary to revise them”.

[1] The BBC has carried a report of some reactions to the statement.

Religion and law round-up – 24th November

Women in the episcopate, same-sex marriage in Scotland, religious dress, and yet more on Richard III

Women in the Church of England episcopate

The big news of the week (or, at any rate, the big news of the week if you’re an Anglican) was the overwhelming General Synod vote in support of consecrating women as bishops. On Wednesday, by 378 to 8, with 25 abstentions, Synod passed a motion to endorse the package of proposals put before it on the consecration of women and invited the House of Bishops to bring forward a draft declaration and proposals for a mandatory disputes resolution procedure. Synod also voted to revise the draft Measure and Canon in plenary rather than in a revision committee. However, there is still a long way to go before the first woman is consecrated: we set out the next steps here. Thinking Anglicans devotes a page to the events of 19 November with links to all the documents.

Richard III – further developments

The judicial review hearing of R (o.a.o. Plantagenet Alliance) v S of S for Justice & Ors in the Divisional Court before three judges will be on 26 November 2013. In his piece “Why Chris Grayling should bury his appeal against Richard III ruling”, Joshua Rozenberg notes:

“Consultation is the only substantive issue to be decided by the High Court. The judges are not being asked to decide where Richard III should be reinterred … If the claim is successful, Grayling will merely be ordered to go away and think again. He could save the taxpayer a great deal of money by doing so now”.

It should also be noted that permission to bury Richard III in Leicester Cathedral or York Minster can only be given by the ecclesiastical courts and that any changes which prove necessary to either building to accommodate the tomb must be approved by the Cathedrals Fabrics Commission for England (CFCE).

At its meeting on 24 October 2013. the CFCE stated that it was unable to reach a decision on the plans submitted by Leicester Cathedral for two reasons: uncertainty on the outcome of the judicial review on 26 November, which was an essential precursor to any grant of permission for internal building works including a tomb space and the inclusion within the reordering proposal of alterations to the furnishings scheme installed by Sir Charles Nicholson in 1927, which was one of his most complete and largest pieces of work. Objections have been raised by a number of the statutory consultees, including: the Society for the Protection of Ancient Buildings, the Victorian Society and the Twentieth Century Society. The CFCE agrees with the Amenity Societies that further study and discussion are needed on the treatment of Nicholson’s scheme.

Marriage and Civil Partnership (Scotland) Bill

The Marriage and Civil Partnership (Scotland) Bill passed Stage 1 on 20 November by 98 votes to 15 with five abstentions.

The right to wear a turban

We noted the outcome in Shingara Mann Singh v France [2013] UN Human Rights Committee CCPR/C/108/D/1928/2010, in which the UN Human Rights Committee in Geneva came to precisely the opposite conclusion from the ECtHR in a case involving the same claimant and very similar facts: that refusing to allow Mr Mann Singh to wear his turban for a passport photograph interfered with his freedom of religion.

The Committee could not understand how bareheaded identity photographs of people who always appear in public with their heads covered could make it easier to identify them in real life. Neither can we.

Consistory Court news

1) Oxford: The Revd Alex McGregor was formally sworn in as Chancellor to the Oxford Diocese at the Diocesan Synod on Saturday 16 November 2013 and there will be a formal welcome to him when his Letters Patent are delivered at Evensong at Christ Church on 11 January 2014.  Alex was appointed as Deputy Chancellor of the Diocese of Oxford in 2007 and has been Deputy Legal Adviser to the Archbishops’ Council and the General Synod since 2009.  He succeeds the Revd  and Worshipful Canon Rupert Bursell QC who served as Chancellor from 2002 until his retirement on 10 November 2013.

2) St Lawrence Church, Wick: With increasing pressure on burial space, incumbents and PCCs will need to adopt a much more professional approach to the reservation of burial plots; and as well as not using reserved plots for other interments as all too often happens, must abandon “informal agreements” that have no standing in ecclesiastical law. The case of Re The Churchyard of Wick St. Lawrence [2013] Bath and Wells Const Ct, Timothy Briden Ch concerned the latter, and provides further guidance concerning the reservation of burial plots by persons with and without a legal right of burial in a churchyard, as considered in Re West Pennard Churchyard [1991] Bath and Wells Const Ct, Newsom Ch and [1992] 1 WLR 33.

For those with a legal right, a faculty may be granted in the discretion of the Court, but the Parochial Church Council may only oppose an application for such a faculty.  Where there is no legal right, s6(2) Church of England (Miscellaneous Provisions) Measure 1976 empowers the minister of a parish, having regard to any general guidance given by the PCC, to permit an interment. In the instant case, although neither the petitioner nor his children had a legal right, the court regularized the informal agreement with the petitioner and his wife, but refused permission for his two sons and two daughters. In addition, the chancellor noted [section4, page 6]

“[t]he Parochial Church Council is entitled to have regard to the anticipated demands upon burial space arising from an increase in the population of the parish. Equally the need to preserve an area free of burial on the north side of the church, in order to facilitate the building of an extension, is justified.”

Re St Andrew, Bradfield

This is not a reported consistory case – yet – but the CofE media have picked up a story in the Daily MailCarole Middleton in an unholy row: Church where Kate and Pippa were christened set to be sold to £30,000-a-year boarding school”. This apparently concerns the secrecy surround the proposal to sell the church where the now Duchess of Cambridge was christened which, it is claimed, has “prompted uproar from locals.” We have no further details; but according to Betjeman’s Best British Churches, St Andrew’s was almost wholly rebuilt by Sir George Gilbert Scott in 1847-8, and under the star-rating system introduced by Betjeman in the 1968 edition it scores more highly than the adjacent entry, St Mary, Bucklebury.

Media games

We have commented earlier on the efficiency of the National Secular Society in its Media Round Up section and the creativeness with which it presents the headlines and  Wednesday 20 November provided some good examples of the latter [our emphasis added]:

  • the Guardian statement “If the CofE is doomed, as former archbishop of Canterbury George Carey insists, it’s down to the damage he did in office”, was rewritten omitting the conditional “if”;
  • to the Telegraph headline “Lord Carey’s vision for the Church of England might kill it off”, “once and for all” was added;
  • another Telegraph headline “Despite our secularist enemies, we are on the brink of a Christian Spring” was translated into “More dishonest piffle from Cristina Odone”.

As to the last of these, whilst accepting that Ms Odone’s style of writing might be profoundly irritating to many (or, at any rate, it certainly irritates Frank), we’re not sure where to set the bar regarding honesty in this area.

This reinterpretation of events for one’s readers was also evident this week across the Tiber. Vatican Insider’s terse report of General Synod’s vote on women in the episcopate was headed “The Church of England has taken this historic decision following a heated debate in the Synod” – somewhat of a contrast to the Archbishop of Canterbury’s statement that “The tone of the debate was strikingly warm and friendly”.

With regard to Government departments’ presentation of facts, Joshua Rozenberg analyses the DWP’s statement after losing the back-to-work appeal which “shows how easy it is to report court rulings to suit an agenda”. His concluding advice to readers is:

“to adopt a degree of scepticism towards media reports – including those for which [he is] responsible. How plausible do they sound? How likely are they to be affected by error or bias? If you can’t cope with a lengthy primary source … then try to read as many different media reports as you can find. Read independent bloggers whose analysis you trust. Don’t assume there is only one way of looking at a case.”


And finally…

Today is Stir-Up Sunday: the day on which, tweets Catherine Fox, “good Anglicans order their luxury Christmas puddings from Fortnum & Mason”…

Religious trusts and their parent denominations: just who’s in charge?

Civil Society reports that Paul Burstow, Lib Dem MP for Sutton and Cheam, has asked the Vatican to intervene to stop a Roman Catholic charity, the Congregation of the Daughters of the Cross of Liège (Registration No. 1068661), from selling St Anthony’s Private Hospital in Sutton to a private company. The charity’s trustees – all of whom are members of the Congregation – propose to sell the hospital as part of their strategy to reduce the scope of the charity’s activities because the Daughters of the Cross are ageing and need to cut down on their commitments.

St Anthony’s Private Hospital shares its site with St Raphael’s Hospice, also owned by the charity; and there is concern that the closure of the hospital might call into question the future of the hospice because the hospice relies on the hospital for what are described as “back-office services”, the annual cost of which is an estimated £1M. The Congregation has given assurances that the hospice will remain under the charity’s ownership until it has achieved financial sustainability and says that the Vatican is already aware of its plans and has not raised any concerns.

Nevertheless, Burstow has collected almost 6,000 signatures on a petition calling on the Vatican to intervene in the case. He presented it to the Commons earlier in the week and told the House that he and the chair of the hospice advisory committee planned to meet Archbishop Mennini, the Apostolic Nuncio, to “urge him to use his good offices to secure a resolution to the dispute between the staff and volunteers and the charity”. He has also written to the Charity Commission, on whose behalf a spokeswoman said that the Commission is aware of the proposed sale and the concerns surrounding it, but “we have seen no evidence to suggest mismanagement at the charity or that the trustees are not acting in the best interests of the charity. As such, we will not be taking any further action”.


The rights and wrongs of the situation in Sutton are emphatically not our concern. What is interesting, however, is Paul Burstow’s appeal to the Vatican to intervene. Under the terms of Canon 331 of the Codex luris Canonici 1983 the Pontiff is

“… the head of the College of Bishops, the Vicar of Christ, and the Pastor of the universal Church here on earth. Consequently, by virtue of his office, he has supreme, full, immediate and universal ordinary power in the Church, [qui ideo vi muneris sui suprema, plena, immediate et universali in Ecclesia gaudet ordinaria potestate] and he can always freely exercise this power”.

Therefore: there is no higher authority than the Pontiff, his authority is complete, it is exercised without any intermediary, it is exercised over the whole Church and it belongs to the office. Moreover, Canon 333 §3 provides that “[t]here is neither appeal nor recourse against a judgment or a decree of the Roman Pontiff”.

So that’s the relevant canon law. But what if the Vatican did intervene?

Under the law of charitable trusts, the trustees are under a duty to act in the interests of the charity – and not otherwise. The Charity Commission puts it like this: “When you make decisions about your charity, you must:

  • act within your powers
  • act in good faith, and only in the interests of your charity
  • make sure you are sufficiently informed, taking any advice you need take account of all relevant factors
  • ignore any irrelevant factors
  • manage conflicts of interest
  • make decisions that are within the range of decisions that a reasonable trustee body could make in the circumstances”. 

So if the Vatican ordered the trustees not to sell the hospital but the trustees were of the considered view that selling the hospital was in the best interests of the charity, what should they do? The answer in charity law would surely be to sell the hospital. The possibility of religious sanctions against the individual trustees would not be a relevant consideration in secular law: the duty to act solely in the interests of the charity is not a choice but a legal obligation.

This is, perhaps, an extreme case; but trustees of all religious charities need constantly to bear in mind that they are there to act in the interests of the trust and in accordance with its governing document, whatever pressures may be put on them by their co-religionists to do the “religious” thing instead.