The Dennis Canon ain’t English Bishop Tom
A very interesting statement from the soon to retire Bishop Tom Butler of Southwark popped up yesterday. Bishop Tom addressed the issue of whether parishes who took up the Pope’s offer might be able to walk away lock, stock and barrel with the church keys.
Here’s what Tom said:
He said, ‘… the papal initiative of a couple of weeks ago has put the cat among the pigeons…’. He went on, ‘What matters in Southwark is that we seek to maintain the excellent relationships which we have with our Roman Catholic friends at every level of church life, Diocesan, Area, Deanery and Parish.’
He continued, ‘…questions were being asked of my office (so) I thought it wise to seek a little legal advice on the implications there might be for the Diocese and its Parishes if any Priest, or group of lay people wished to become Roman Catholics, which of course they are perfectly entitled to do, after all there has always been movement between the denominations and in recent times the Diocese of Southwark has benefited enormously from the ministry of several vicars who were formerly Roman Catholic priests.
But no priest or group of laity has the right to take church property with them when they change denominations, for a Diocese holds such property in trust for the mission and ministry of the Church of England to all the people of its parishes and this duty of care would continue.
I don’t myself see how a parish could legally “take” the parish church and other assets without specific statutory authority. In the case of the parish church, it would presumably mean a Scheme under the Pastoral Measure or specific legislation enacted for the purpose, and this could only be done with the goodwill of the Diocese. In the case of assets such as the church hall or other parish property, appropriation to another denomination would almost certainly be a breach of trust and would not be possible without the co-operation of the Diocesan Board of Finance as Custodian Trustees and probably also the involvement of the Charity Commission. Parsonage houses are, of course, governed by the Parsonages Measure and an Incumbent cannot alienate the parsonage without obtaining the authority required by law, again the Diocesan Board of Finance or the Church Commissioners. Of course, in the months and years ahead much of this might well be crawled over by lawyers on all sides, but the general principles seem to be clear…..’.
Hmmmmm. Really? I’ve bolded a section of the press release because despite the fact that Tom thinks this is all cut and dried the actual position is a lot more complicated, as the BBC rightly points out.
Who owns the parishes/church buildings?
Nobody. In 2005 a Church inquiry found that various groups have different rights and duties. Parishioners, for instance, have the right of access for worship, and the right to burial.
The Church council is responsible for repairs and maintenance, and the churchwardens own the building’s contents.
But, legally, nobody actually owns England’s 16,000 parish churches. Ecclesiastical lawyers may be looking forward to a busy few years.
Right, so let’s get this straight. The Church Wardens own the contents of the building, so they could technically walk off with them, or transfer them to another jurisdiction. Would this be a “breach of trust” as Bishop Tom suggests? Not necessarily – depends on the terms of the trust that is referred to. What’s that you say – there is no actual trust drawn up? Not as simple then as Bishop Tom suggests.
Then we get on to the sticky issue of clergy freehold. Wikipedia gives us a brief introduction.
The parson’s freehold refers to a system within the Church of England in which the rector or vicar of a parish holds title to benefice property, viz., Church, Churchyard and Parsonage, the ownership passing to his successor. This system has recently been debated by General Synod, and, were Parliament to approve, could at least in part be modified.
The parson’s freehold is a type of benefice; originally also it established income from and tenancy of certain properties in recompense for the priest’s exercise of ecclesiastical offices. These would have included occupancy of the rectory (and its outbuildings), fees and Easter offerings, income from tithes (received in the form of a tax on properties within the parish bounds), and income from the glebe (parcels which could be farmed for the rector’s profit). These formed the basis for the rector’s income, out of which he lived, and kept the Church. Communion Alms met some of the needs of the poor. Often the Patron or another landowner would take the lead in repairs and extensions of the Church; sometimes the Rector or Vicar did so himself. For the purposes of law the rector owns the remaining property as a corporation sole. However, unlike usual fee simple ownership, the property did not pass to his heir upon his death. Instead, it passed to the next officeholder.
So the church building itself to all intents and purposes belongs to the vicar him(her)self and is passed on to the next office holder. The wikipedia article references two pieces in the Ecclesiastical Law Journal and I’m trying to get hold of them to comment futher, but while we wait for that it appears from this reading that if the incumbent decides to transfer the church to the Roman jurisdiction and the Church Wardens do the same with the contents, the Diocese might actually have a tough job stopping them.
In the meantime, what strikes me is that Tom Butler has attempted to suggest that something equivalent to the Dennis Canon exists in the Church of England. Nothing could be further from the case and it appears that the “general principles” are much less clear than the Bishop of Southwark seems to want them to be. If anybody more in the know wants to offer a legal opinion, do please comment below.
To be fair to the man, he has said that he took legal advice.
Mouse suspects that the fatal problem for anyone seeking to head off to the Catholic Church and take their church building with them, is that all of this confusion that you point out takes place within the CofE. If the vicar resigns and goes off to another denomination, he can hardly claim that he remains the legal owner of the building.
You could always argue that it’s not being taken, merely returned :-)
The BBC article is wrong, and (for once) the wikipedia article is correct, ie the incumbent has the freehold and “owns” the building for as long as they remain in post.
To transfer ownership to another church would require a faculty, and it therefore becomes a Diocesan matter.
Thanks for that Sam. I guess the issue then becomes what rights does the freeholder have to use different rites etc in *his* church?
I think the answer to that is that the way the incumbent can use his freehold powers, whether over the parsonage house or over the church building, is governed by the rules under which he or she holds that freehold in the first place – the common law as regulated from time to time by canon etc. So legally the services must be ones that are authorised by [CofE!] canon, although in practice it is difficult to stop anyone from being inventive in this respect …
I think the answer to that is that the way the incumbent can use his freehold powers, whether over the parsonage house or over the church building, is governed by the rules under which he or she holds that freehold in the first place – the common law as regulated from time to time by canon etc. So legally the services must be ones that are authorised by [CofE!] canon, although in practice it is difficult to stop anyone from being inventive in this respect …
Well… strictly, an incumbent should follow canon law, which prohibits some things and mandates others. In practice an incumbent can get away with whatever the relevant PCC and community will let them get away with, eg use of the Roman Missal, or, at the other end, complete abandonment of any liturgy (or even regular reading of Scripture). The strange thing is that the present situation for a FiF incumbent actually allows them, explicitly or tacitly, to have everything at a local level they might desire. What cannot be done (and today’s press release confirms this) is to provide an alternative oversight which doesn’t accept the validity of women’s episcopal oversight. I think the Pope’s offer is a very sharp one, and people will now be forced to choose – for the long term spiritual health of everyone involved IMHO.
Thanks Sam,
Part of my raising of these issues was that we could have a discussion like this and thrash out the practicalities of parish freehold and the limits of the autonomy that that provides.
It’s worth saying I think that the original thrust of my post, that Bishop Tom had implied something akin to the Dennis Canon existed in the Church of England. What we’ve demonstrated here so far is that the legal position, whilst not really giving much wriggle room for walking off with the church and contents, isn’t quite as simply as what Bishop Tom implies.
I think it’s worth pointing out that “freehold” and “ownership” in respect of incumbents and their parsonage houses do not mean what they mean in respect of ordinary people and their houses! If they did, the vicar would be free to sell the house and keep the profits for personal use, for example, which is certainly not the case in the real world; nor could the vicar just give or bequeath it to a third party.
The reason (I believe) is that the freehold is not vested in the incumbent in his own right as a person but in him/her as corporation sole, which means in effect it belongs to the office rather than the person, and goes with the office when that passes on.
Also, as for parishes, although they are separate legal entities in law (i.e. distinct from their diocese and from the CofE as a whole, and thus able, for example, to enter into contracts or initiate litigation with those bodies or indeed anyone else) that legal identity is itself derived from the laws governing the administration etc. of the CofE and I believe it could not be transferred out of the CofE structure, either to another body or into a state of independent existence. (Also, with regard to the parish church, if the parish does not own it then it follows that the parish cannot dispose of it.)
As for churchwardens: although the ownership of the church’s movable property is indeed vested in us, we are not free to alienate it from the parish either to ourselves or to anyone else without permission: which would mean the PCC’s permission in all cases and a faculty (in effect the diocese’s permission) in many cases. Moreover we have a corresponding obligation to maintain the property in good condition (or if necessary replace like with like) and deliver it up for use by the licensed parish clergy and inspection by the archdeacon or his representatives, so again that is a limit on what we can do with it. I assume that if the clergy became Roman Catholics they would no longer count as the licensed parish clergy and we would have to make sure the stuff was available for their officially appointed CofE successors.
It now occurs to me that a much more succinct answer would have been to say that, if incumbents or churchwardens were legally permitted to walk off with or dispose of church property just as they like, it would certainly have already happened by now without any need of encouragement from his holiness!!!
Agreed.
There’s an interesting discussion to be had though around what would happen with respect to the idea that the freehold is held by the “office” which is formally in the gift of the patron. Such patronage can be used to maintain a particular theological / ecclesiological stance for the parish.
Of course, freehold vanishes next year doesn’t it? Common tenure will make this argument redundant.
Personally, although I’m sure that all sorts of arguments can be extended regarding the *justice* of congregations taking their church buildings and paraphernalia with them to Rome (or wherever), I think that in practice there is no chance in *law*..
Even if there is no existing law that can be construed to mean that they belong to the denomination, rather than the freeholder, and even if the Government doesn’t decide to ‘clarify’ the law in favour of the denomination (which woul surely be tempting when the rebels are “wrong”), the Church Commissioners have the funds to be able to win a legal case (of their choosing) and so set the necessary legal precedent.
Unless the House of Bishops and General Synod indicate very soon a clear willingness to find reasonable buying price for departing churches assets, I’d be thinking about how to do it as well as possible assuming that the fixed assets and church funds/debts will have to be left behind!
It’d almost certainly just give people false hope, and waste time and effort, to assume anything else.