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The Legal Framework of the Church of EnglandA Critical Study in a Comparative Context$

Norman Doe

Print publication date: 1996

Print ISBN-13: 9780198262206

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198262206.001.0001

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The Administration and Control of Finance

The Administration and Control of Finance

Chapter:
(p.462) 17 The Administration and Control of Finance
Source:
The Legal Framework of the Church of England
Author(s):

Norman Doe

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198262206.003.0018

Abstract and Keywords

The legal organisation of finance in the Church of England, like that of the Roman Catholic Church, serves four basic functions. First, the law requires the existence of prescribed funds for specified ecclesiastical objects. Secondly, it assigns to authorities at national, diocesan, and parochial levels the functions of holding, administering, investing, and applying these funds. Thirdly, it imposes structures enabling control over and accountability for financial management. Fourthly, when the law requires expenditure it confers upon bodies and persons rights to make claims upon the church's funds. Whilst there are structural principles common to all bodies involved in financial management, the precise terms of these arrangements vary as between the bodies in question. Regulation of funds, fund-holders, expenditure (on stipends, clergy compensation, and pensions), ecclesiastical fees, legal aid, and costs in judicial proceedings is effected mainly by the church's central legal system. Acquisition, investment, and insurance are regulated by both internal church law and civil law.

Keywords:   Church of England, Roman Catholic Church, finance, funds, financial management, expenditure, ecclesiastical fees, legal aid, investment, insurance

The legal organization of finance in the Church of England, like that of the Roman Catholic Church, serves four basic functions. First, the law requires the existence of prescribed funds for specified ecclesiastical objects. Secondly, it assigns to authorities at national, diocesan, and parochial levels the functions of holding, administering, investing, and applying these funds. Thirdly, it imposes structures enabling control over and accountability for financial management. Fourthly, when the law requires expenditure it confers upon bodies and persons rights to make claims upon the church’s funds. Whilst there are structural principles common to all bodies involved in financial management, the precise terms of these arrangements vary as between the bodies in question. Regulation of funds, fund-holders, expenditure (on stipends, clergy compensation, and pensions), ecclesiastical fees, legal aid, and costs in judicial proceedings is effected mainly by the church’s central legal system. Acquisition, investment, and insurance are regulated by both internal church law and civil law. In contrast with Roman Catholic canon law, the redistribution of funds within the Church of England to meet expenditure (the quota system) and payment of expenses of ministers are regulated almost entirely by extra-legal norms rather than by the church’s central legal system.

The Holding of Funds: Executive Bodies

The law of the Church of England requires the existence of several prescribed funds to be used for the work of the church. As with Roman Catholic canon law (in which financial management is devolved),1 the law in the Church of England assigns fund-holding and management responsibilities both to central (p.463) or national and to local ecclesiastical authorities in the dioceses and parishes.2

The Central Board of Finance

Whilst not a direct creation of synodical measure, General Synod’s Central Board of Finance, a company and registered charity, is governed by secular company and charity law, by its memorandum and articles of association, and by Standing Orders of General Synod.3 The Board is ‘responsible as the financial executive of the Synod for the management of the financial business of the Synod’.4 The Board may at any time submit such reports ‘as it thinks fit’ to General Synod on the financial business of the General Synod, of Synod’s subordinate bodies, and of any body in receipt of moneys voted by General Synod, as well as on the financial implications of any item of business included on General Synod’s agenda.5 Bodies spending money voted by General Synod must lay before the Board (not later than 1 March in each year) estimates of the expenditure required in the forthcoming calendar year and, after consultation with synod’s Standing Committee, the Board must include in the annual budget ‘such estimate or so much of it as in its judgment is financially expedient’.6 Not later than 31 July each year the Board must present to General Synod the accounts of the Synod for the preceding year, the budget for the following year, and motions for the authorization of expenditure required under the various heads of the estimates. When General Synod has approved the budget and such recommendations relating to it as it thinks fit, the amounts so approved ‘shall be held to be votes of the Synod and may be applied by the Board to the objects specified’.7

The Board has a discretionary power (not a duty) to call upon any body in (p.464) receipt of voted moneys to account to the Board for the monies so voted and the Board may conduct such audit of the accounts of that body as the Board deems desirable.8 In presenting the yearly accounts the Board must report to General Synod any expenditure in excess of money voted and must lay before Synod ‘the explanation of the body concerned, together with the observations of the Board and its recommendations as to the conditions, if any, upon which the excess expenditure shall be condoned and now sanctioned’.9 A body to whom money is voted may submit to the Board a supplementary estimate of additional expenditure if the original vote is inadequate; in turn, the Board may submit to Synod a supplementary estimate upon which General Synod may make a supplementary vote.10 No motion or recommendation shall have effect in authorizing expenditure from synodical funds unless General Synod gives the authorization in express words.11 The two principal funds which the Board administers are the General Synod Fund and the Central Church Fund.12

The Church Commissioners

The Church Commissioners form a body corporate, established under the Church Commissioners Measure 1947 from a merger of the Ecclesiastical Commissioners (established in 1836) and the Governors of Queen Anne’s Bounty (established in 1704 for ‘the Augmentation of the Poor Clergy’). All property hitherto held by those bodies is now held on trust by the Church Commissioners for the purposes of the Church of England.13 The Commissioners are the two archbishops, all the diocesan bishops, the three Church Estates Commissioners (two of whom are appointed by the Crown and the third by the Archbishop of Canterbury), the Lord Chancellor, the Lord President of the Council, the Home Secretary, the First Lord of the Treasury, the Chancellor of the Exchequer, the Speaker of the House of Commons, the Lord Chief Justice, the Master of the Rolls, the Attorney-General, the Solicitor-General, the Lords Mayor of London and York, the Vice-Chancellors of the Universities of Oxford and Cambridge, and thirty-five others appointed and nominated by, inter alia, General Synod and the two archbishops.14 The (p.465) recent Turnbull Commission has proposed radical reforms of the structures described in the following paragraphs.15

The Church Commissioners Measure 1947 does not define their functions beyond the general principle that they enjoy ‘all functions, rights and privileges’ hitherto enjoyed by the Ecclesiastical Commissioners and the Governors of Queen Anne’s Bounty.16 The Commissioners must hold and administer a General Fund consisting of all income received in respect of property and funds held by them. From it they must discharge all trusts and commitments to which that income is subject and any expenses and obligations falling on them in discharge of their functions. The balance remaining in the fund must be available for any purpose for which any surplus of the common fund of the Ecclesiastical Commissioners or the corporate fund of Queen Anne’s Bounty would have been available.17 The General Fund is used to make grants for stipends, pensions, church building, and parsonages, and loans to theological colleges.18

The Church Commissioners transact their business either through general meetings or through their Board of Governors. An annual general meeting (ordinarily chaired by the Archbishop of Canterbury) must be held in every financial year for the purpose of considering, and if necessary passing resolutions concerning, the annual report and accounts of the Commissioners and any other matters which may be brought before the meeting by the Board of Governors or by the chairman. At the AGM the Commissoners appoint members of the Board of Governors, consider and (if thought fit) adopt the recommendations of the Board as to the allocation of such moneys as the (p.466) Board may report to be available. Notice of the general meeting must be given to every member.19

With the exception of business transacted at a general meeting, the functions and business of the Church Commissioners must be exercised and transacted in accordance with the provisions of the Church Commissioners Measure 1947 (as amended) by a Board of Governors.20 The Board is composed of the archbishops, the three Estates Commissioners and twenty-two other Commissioners appointed by the Commissioners, and such other Commissioners as the Board may co-opt.21 The Board is empowered to refer for consideration and report any matter within its jurisdiction to the General Purposes Committee or the Assets Committee or to any other committee of Commissioners which the board may appoint. The Board may authorize these committees by way of delegation to do and complete any matter on its behalf. Moreover, the Board is empowered to make general rules for the direction and guidance of these committees including ‘the general principles upon which that committee shall act in carrying out such functions as may from time to time be delegated to them by the Board’.22 Notice of the business to be considered at a meeting of the Board must be given to its members and to those diocesan bishops who are not members.23

The General Purposes Committee comprises the three Estates Commissioners and not less than eight nor more than ten other Commissioners appointed by the Board of Governors; at least two must be diocesan bishops, at least three clerks in holy orders, and at least three lay persons. The Assets Committee comprises the First Church Estates Commissioner, one Commissioner being a clerk in holy orders appointed for three years by the Board, and not less than three and no more than five lay Commissioners appointed for three years by the Archbishop of Canterbury. The First Church Estates Commissioner is chairman of each committee and a deputy chairman is elected annually by each committee. The functions of the General Purposes Committee are to consider, recommend, and report to the Board on how to apply or distribute such sums as the Board determines to be available for application or distribution and to act on behalf of the Commissioners in any matters which the Committee considers urgent. The Assets Committee has, subject to any general rules made by the Board, ‘an exclusive power and duty’ to act on behalf of and in the name of the Commissioners in all matters relating to the management of those assets of the Commissioners the income of which is carried into their General Fund. This includes the power to purchase, sell, or let land and to make, realize, and change investments. The Committee is under a duty to recommend to the Board, from time to time, what sums are available (p.467) for application or distribution by the Commissioners and what sums should be appropriated to reserve and for reinvestment.24 The basic procedures to be employed by the Commissioners, by the Board, and by the two Committees are laid down in the 1947 Measure, though as a general principle each body has the power to regulate its own procedure.25

The 1947 Measure lays down a simple system for audit: the accounts of the Commissioners ‘shall in every year be audited in such manner and by such person as the Treasury may direct’.26 The Board of Governors must prepare a report each year on the work and proceedings of the Commissioners and must present the report and accounts for that year to the Commissioners at the annual general meeting. Within thirty days of the meeting the secretary must transmit the report and accounts, together with a copy of any resolution passed by the Commissioners, to the Home Secretary who must lay these before both Houses of Parliament. Copies of these documents must also be sent to the Secretary of General Synod who must put them before Synod.27 There seems to be no specific duty on Synod to scrutinize these documents though in practice the report and accounts are debated every other year.28 Not being a subordinate body of General Synod, the Church Commissioners are under no legal duties to consult General Synod, its Standing Committee, or its financial executive (the Central Board of Finance) prior to the exercise of their functions.29

The Pensions Board

The Church of England Pensions Board, established under the Clergy Pensions Measure 1926 and now governed in the main by a synodical measure of 1961, is directly accountable to General Synod. The Board, a body corporate, consists of a chairman and not less than twenty-one or more than twenty-three other members appointed or elected by General Synod and the Church Commissioners.30 The Board is empowered to appoint central committees (consisting of board members) to which, subject to the provisions of the Measure, it may delegate any of its functions; it may appoint other local committees (consisting of persons whether board members or not) for any areas, whether dioceses or not, to which it may delegate any of the Board’s functions.31 The duty of the Board, or its delegatees, is to ‘control and administer the system of pensions’ established by the Measure, as amended.32 The Board has power to enter into agreements for the receipt and (p.468) payment of actuarial equivalents of any contributions or pensions made under the Measure and to borrow money for the purposes of pensions for clergy widows and dependants.33 The Pensions Board is subordinate to the Church Commissioners who may give to it ‘directions of a general character as to the exercise and performance’ by the Board of its functions. The directions must be such as appear to the Commissioners ‘requisite or expedient for securing a due balance between the amounts respectively of the liability imposed on [the Commissioners’] general fund…and the resources of that fund available for meeting the liability’. The Pensions Board must give effect to the Commissioners’ directions.34

All payments by the Church Commissioners to the Pensions Board for clergy pensions must be paid out of the Commissioners’ General Fund. With respect to pensions for widows and dependants, the Commissioners must pay out of the General Fund to the Board sums required by the Board for these purposes.35 Contributions payable with respect to widows and dependants and sums received from the General Fund must be paid by the Board into the Clergy (Widows and Dependants) Pensions Fund which is administered by the Board.36 Similarly, the Board administers the Clergy Pensions Augmentation Fund into which it must pay any testamentary or other gift to the Board for the relief of poverty of retired clergy or for the provision of homes of residence for retired clergy and their wives and for the widows and dependants of deceased clergy; subject to any conditions imposed by the testators or donors, the Board has a discretion to apply the fund or any part of it for these purposes.37 The Board also administers a Church Workers Pension Fund for these, their widows, and dependants,38 and may make loans to retired clergy and church workers (or their wives or widows) to assist them to purchase, build, rebuild, or improve dwelling houses.39 The Treasury must from time to time appoint an auditor to audit the accounts of any fund or trust administered by the Board. The auditor must carry out the audit at such times as the Treasury directs and must report to General Synod; the Board too must present annually to the Synod a report with respect to any such fund.40

Diocesan Financial Executives and Funds

Although the matter is not treated expressly by synodical measure, normally under their Standing Orders the standing committee of the diocesan synod is responsible for advising the president and the synod on the determination of priorities in the allocation of any funds at the disposal of the synod.41 The (p.469) diocesan board of finance is the financial executive of the diocesan synod and is responsible for the custody and management of the synod’s funds.42 Under the Diocesan Boards of Finance Measure 1925, the diocesan board of finance, a registered company, is constituted by the diocesan synod and its activities are regulated both by civil company law and by synodical measure. Its memorandum and articles of association must empower the board to hold property and transact business for purposes connected with the Church of England. The diocesan synod may augment the board’s powers if this is necessary or expedient in view of the requirements of the diocese. The board is composed of the diocesan bishop and not less than three-quarters of the other members must be elected by the diocesan synod or, if allowed by the memorandum and articles, wholly or partly by the diocesan deanery synods; the remainder must be elected, nominated, or co-opted as prescribed by the company’s memorandum and articles ensuring that not less than two-thirds of those elected are members of the diocesan synod and that a majority are laypersons.43 The diocesan board of finance is subject to the direct control of the diocesan synod: it ‘shall in the exercise of its powers and duties comply with such directions as may from time to time by given to the board by the Diocesan Synod’.44 Whilst particular functions are assigned by a variety of synodical measures, the board’s general functions are as prescribed by its constitution.45

In addition to the audit procedures applicable to it under the Companies Act 1985,46 by Standing Orders of the diocesan synod, normally the diocesan finance board must in each year submit to the synod’s standing committee a report and accounts for the preceding financial year and a draft budget for the following year: the standing committee may make to the board and to synod such recommendations thereon as it thinks fit.47 The diocesan board of finance must also present to the synod the accounts for the preceding year and the budget for the following year as approved by the board. The budget must provide for the expenditure required by every committee and other body responsible to the synod, subject to any reductions made by the board on grounds of priority or financial expediency after consultation with the synod’s standing committee.48 In presenting the accounts for the preceding year the board must report any expenditure in excess of the funds voted for that year and give the explanation of the body responsible, together with the board’s own comments and recommendations as to how the excess expenditure shall be sanctioned.49 Before a proposal involving expenditure is put to the diocesan synod, the prescribed notices must be given.50 The diocesan board of finance is (p.470) forbidden to expend or engage to expend any of the synod’s funds for which it is responsible without the authority of a money resolution.51

By synodical measure, the Church Commissioners must for each diocese open and keep two accounts: a stipends fund52 and a pastoral account.53 Over these the diocese itself has some legal control. With regard to the diocesan stipends fund, two accounts must be opened and kept: a capital account and an income account to which the Commissioners must allocate all moneys and other property held by them on behalf of that fund in such proportions as they shall determine. In so doing the Commissioners must consult the diocesan bishop and the diocesan board of finance.54 The Commissioners must allocate between the accounts of each diocesan stipends fund payments, legacies, donations, contributions, and other money or property received for the credit of the fund.55 Money allocated to either account is not credited direct to that account, but is taken over and held as part of the Commissioners’ General Fund, and in lieu the accounts are credited with a sum charged upon the General Fund of an amount equal in value to the money taken over.56 Subject to such charges as are imposed on the capital of the stipends fund, money standing to the credit of the capital account of the stipends fund may, at the discretion of the Commissioners (and on the special request of the bishop made with the concurrence of the diocesan finance board) be appropriated as an endowment fund held by the Commissioners for any benefice within the diocese or as an augmentation of any such endowment fund; in default of and subject to any such appropriation, it shall be kept standing to the credit of the capital account.57 Moreover, again subject to overriding charges, money standing to the credit of the income account must be applied in providing or augmenting the stipends or other emoluments of incumbents or licensed assistant curates or other persons who are declared by the bishop to be engaged in the cure of souls within the diocese. Such applications must be made with directions from time to time given by the bishop (or a person duly authorized by him) with the concurrence of the diocesan board of finance.58 The diocesan board of finance has a right to be furnished with both accounts annually.59

With regard to the diocesan pastoral account, under the Pastoral Measure 1983 the Church Commissioners must transfer into this any moneys payable under a pastoral scheme and such other moneys as the bishop and the diocesan board of finance, after consultation with the Commissioners, direct the Commissioners to accept (not being moneys for the disposal of which provision is (p.471) made under any other enactment). Every diocesan finance board must as soon as is practicable after the end of each financial year prepare an account of the moneys paid into or out of the diocesan pastoral account during that year. This must include a statement of the amount by which the pastoral account was in debit or credit at the beginning and end of that year. Moreover, the finance board must send to the Commissioners annually a copy of the account prepared by the board duly audited as well as a copy to the diocesan synod.60 Expenses incurred by or on behalf of (or under the authority or direction of) the bishop, any pastoral committee, any diocesan redundant churches uses committee, or by the Commissioners in implementing the Pastoral Measure 1983 may be paid out of the moneys standing to the credit of the diocesan pastoral account as the Commissioners may determine.61 Where, after consultation with the diocesan board of finance, the Church Commissioners are satisfied that any moneys standing to the credit of a diocesan pastoral account are not required (or likely to be required) for meeting these expenses, then at the request of the board they may apply those moneys by way of grant or loan. Application may include the provision, restoration, improvement, or repair of diocesan churches and parsonage houses or to other purposes of the diocese or any benefice or parish therein. They may also apply those moneys for the benefit of the diocese for general or specified purposes or transfer those moneys to the capital or income account of the diocesan stipends fund. Before making a request for applications, the board must consult the Commissioners about the purposes for which the board wishes the moneys to be used. Only with the agreement of the Commissioners is the board entitled to request that the moneys be transferred to a fund, held on behalf of the diocese or any benefice or parish, not being a fund held and administered by the Commissioners. If at any time there is not a sufficient amount standing to the credit of the pastoral account to meet such expenditure the Commissioners may, if they think fit, make an advance out of the General Fund towards this and transfer from the diocesan pastoral account into their General Fund the amount of the advance.62

Parochial Financial Executives

Whilst the central legal system of the Church of England confers upon parishes a basic financial autonomy, in some cases regulation provides for direct control (p.472) of financial management by diocesan authorities.63 To provide assistance for financial management, many dioceses have a stewardship adviser.64 One function of the parochial church council is ‘the collection and administration of all moneys raised for church purposes and the keeping of accounts in relation to such affairs and moneys’.65 To this end, the council is empowered ‘to frame an annual budget of moneys required for the maintenance of the work of the Church in the parish and otherwise and to take such steps as they think necessary for the raising collecting and allocating of such moneys’. The parochial church council enjoys a specific power ‘jointly with the minister to determine the objects to which all moneys to be given or collected in church shall be allocated subject to the directions contained in the Book of Common Prayer as to the disposal of money given at the offertory’.66 In the event of disagreement, the matter is to be referred to the diocesan bishop whose directions are final.67 The incumbent has a right, recognized judicially, to dispose of money collected from services held elsewhere than in church as he thinks fit.68 The council also seems to have a power to borrow money,69 as well as the power to receive money from land put to secular uses.70 Practices vary as between councils, but funds and accounts will be established to cover both recurring and occasional expenses.71

Every parochial church council must furnish to the annual parochial church meeting the audited accounts of the council for the year ending on 31 December immediately preceding the meeting and an audited statement of the funds and property, if any, remaining in the hands of the council at that date. The accounts and statement must be submitted to the meeting for approval. If approved, they must be signed by the chairman of the meeting who must in turn deliver them to the council by which they must be published.72 The accounts of all trusts administered by the council must be laid before the (p.473) diocesan authority annually.73 It is for the annual parochial meeting to appoint auditors to the council.74 Incumbents, churchwardens, and parochial church councils must obtain the consent of the appropriate diocesan authority before acquiring funds to be held on permanent trust; as managing trustees, they must then inform the diocesan authority as custodian trustee of the administration of the fund in question.75

Roman Catholic Organization

Meaningful comparisons with the organization of finances in the Roman Catholic Church under the 1983 Code might be made with respect to the lower ecclesiastical levels.76 According to Canon 1274, unless other provisions have been made for the support of the clergy, each diocese is to have a special institute which collects and manages funds acquired for the support of clergy. The conference of bishops must ensure that an institute exists which provides sufficiently for their financial needs. Moreover, each diocese is required to establish a ‘common fund’ through which the bishops may satisfy obligations towards other persons who serve the church, to meet the needs of the diocese, and to aid poorer dioceses. Provision exists to create a federation of institutes to fulfil these functions. It falls to the bishop to assist in procuring ‘those means whereby the Apostolic See can properly provide for its service of the universal church according to the conditions of the times’.77

The ordinary must supervise the administration of church funds with the assistance of the diocesan finance council.78 Administrators of temporal goods must present to the local ordinary an annual report which in turn he is to present to the finance council for its consideration (c. 1287(1)). The council is composed of at least three members of the faithful (‘truly skilled in financial affairs as well as in civil law and of outstanding integrity’) appointed by the diocesan bishop; appointees, who cannot be ‘related to the bishop’, hold office for a term of five years (cc.228, 492). The council must prepare each year, according to the directions of the diocesan bishop, a budget of the income and expenditure foreseen for the governance of the diocese in the coming year; at the end of the year it must examine a report of receipts and expenditure (c. 493). (p.474) In each diocese, after consultation with the college of consultors and the council, the bishop must appoint a finance officer, for a renewable five-year term, who may not be dismissed except for grave cause (to be assessed by the bishop after consulting the college of consultors). It is the duty of the finance officer to administer the goods of the diocese under the authority of the bishop in accordance with the budget determined by the council. From the income of the diocese the finance officer is to meet the expenditure which the bishop (or others deputized by him) legitimately authorizes. The finance officer must report receipts and expenditure at the end of the year to the council (c. 494). Each parish must have its own finance council obliged to act in accordance with universal law and episcopal norms (c. 537).79

The Acquisition of Funds

The cost of running the Church of England falls broadly upon the faithful; there is no general provision for state financial support.80 The central legal system of the church provides only a minimal framework regulating the acquisition of funds, though advisory structures exist at diocesan level to enable effective fund-raising.81 Ordinarily, arrangements in the Church of England confer powers or rights rather than duties to acquire funds. The legal framework is not coercive and only exceptionally are duties imposed on bodies and persons to contribute to funds. The position in the Roman Catholic Church is different.

Compellable Payments to the Church: Fees

Any sum due to a corporation of the Church of England under the terms of a valid contract is recoverable as a debt under civil law. Consequently, sums owed under disposal or leasing agreements, interest on investments, insurance returns, and covenanted gifts, for example, may be recovered in legal proceedings.82 In addition to these, funds are acquired by means of fees lawfully chargeable by (p.475) ecclesiastical authorities on the occurrence of particular ministrations. The Ecclesiastical Fees Measure 1986 empowers the Church Commissioners to prepare a draft Parochial Fees Order, prescribing amounts payable to those specified in the Order. These must be laid before General Synod for approval. Whilst the draft order need not be debated by Synod, if its Standing Committee so determines, by giving notice a Synod member may insist on debate. If approved by Synod without amendment the Church Commissioners must then make the order. If approved with amendments the Commissioners may make the order as amended or withdraw it for further consideration. A parochial fees order does not come into force until it has been approved by Parliament and sealed by the Church Commissioners as a Statutory Instrument.83

The Parochial Fees Order 1995 sets out the table of fees.84 One part of each fee is payable to the incumbent and the other to the parochial church council. Whilst fees must ordinarily be paid to the incumbent of the benefice, the incumbent has a right to sign a deed of assignment in favour of the diocesan board of finance; alternatively, the incumbent may direct either generally or in particular cases that all or part of any fee which would otherwise be payable to him shall be payable to the minister performing the service or duty.85 During a vacancy in a benefice, fees otherwise payable to the incumbent are payable to the diocesan board of finance or to such other person as the board, after consultation with the bishop, may direct.86 The 1995 Order states that the fees listed in the table ‘are to be payable to the persons named therein’. This does not, it seems, impose a duty to demand the full fee prescribed but confers a discretion to demand a fee below the fixed maximum or indeed to waive the payment of any fee. Many diocesan norms, on the basis of guidance issued by the Church Commissioners, recognize a right to waive a fee if there is an acceptable pastoral reason; some dioceses discourage the practice.87 In any event, if a demand is made fees payable by order are recoverable as a debt.88

Under the 1995 Order, in respect of baptisms, though a fee may not be demanded for the baptism itself,89 a fee may be imposed for the issue of the baptismal certificate and of a short certificate of baptism.90 With respect to marriages, fees are payable for the publication of banns, for the certificate issued at the time of their publication, and for the service.91 Fees are payable (p.476) for a funeral service conducted in church, for burial in a churchyard (in a new or existing grave) or cemetery, or for cremation following a service in church, for the burial of a body in a churchyard on a separate occasion, for burial of cremated remains in a churchyard on a separate occasion, or for burial in a cemetery on a separate occasion. They are also payable when there is no service in church, for a service in a crematorium or cemetery, for burial of a body or cremated remains in a churchyard, and for the issue of a certificate issued at the time of burial. The fee for a burial in a churchyard ‘on a separate occasion’ means on any occasion other than immediately following a service in church (for example the interment of cremated remains). No fee is payable in respect of the burial of a still-born infant, or for the funeral or burial of an infant dying within the period of one year after birth. If a full service is held at the graveside the incumbent’s fee is increased to that payable where the service is held in church. Fees are also payable for the erection of monuments and for searches in registers.92

The ecclesiastical courts are empowered to make provision for costs, fees, and expenses incurred in ecclesiastical legal proceedings.93 With regard to faculty proceedings, costs and fees are governed by a series of synodical measures and the power to order (subject to certain fixed fees and scales) is vested exclusively in the diocesan chancellor.94 The person in whose favour the order is made may recover costs in the county court.95 At any point in faculty proceedings the chancellor may order any party to give security for costs and expenses of any other party and for the court fees (including those of the chancellor and registrar).96 Consistory court fees are fixed from time to time by fees orders, the drafts of which must be laid before General Synod, made by the Fees Advisory Commission.97 In uncontested petitions all court fees are payable by the petitioner though in some dioceses arrangements exist by which these are paid by the diocesan board of finance.98 Provision exists for the chancellor to issue a special citation adding as a party to proceedings a person alleged to be responsible (wholly or in part) for an act or default in consequence of which proceedings were instituted. That person may be ordered to pay the whole or part of the costs of (and consequential upon) the proceedings; this may include expenses incurred in carrying out work authorized by faculty.99 Ordinarily, the responsibility for meeting a party’s costs and expenses lies with that party and no order issues in respect of them; (p.477) in contested petitions the costs ‘follow the event’.100 Extraordinarily, however, depending on the circumstances of the case, the court may order one party to pay the costs of the other party or parties.101 As a general principle, costs in appeals follow the event though in special cases no order for costs is made.102 Costs of disciplinary proceedings, covering those of the bishop and promoter, the recovery and payment of expenses and fees, are regulated by the Ecclesiastical Jurisdiction Measure 1963.103

Voluntary Payments

Whilst parish funds may be derived from a variety of voluntary sources,104 legal regulation of fund-raising in the Church of England is minimal. The parochial church council, empowered to take steps by raising and collecting moneys to meet its annual budget, has a specific power ‘to make, levy and collect a voluntary church rate for any purpose connected with the affairs of the church including the administrative expenses of the council and the costs of any legal proceedings’.105 Though there is a general prohibition imposed by parliamentary statute against enforcing or compelling payment of the rate,106 its levying could be made the subject of a contract.107 Money acquired and collected at Holy Communion forms (by operation of law) part of the general funds of the parochial church council and must be disposed of jointly by the council and the minister.108 The Legal Advisory Commission is of the view that ‘[t]he bishop has the right to say whether or not there shall be a collection at any service he conducts’ (such as an institution, induction, confirmation, or ordination) but if there is a collection ‘strictly its destination rests with the incumbent and [council]’.109 It is the responsibility of the churchwardens, with the assistance of a sidesperson if required, to collect alms.110 Money deposited (p.478) in an alms box, which by canon must be provided in every parochial church and chapel, must be applied ‘to such uses as the minister and parochial church council shall think fit’; if they disagree, the ordinary must determine disposal.111 Covenants today form a substantial source of income and are subject to regulation by civil law enabling the donee to recover tax at standard rate and the donor to recover higher rate tax.112 Dioceses often provide for ‘giving initiatives’ sometimes prescribing that a person (other than the treasurer) be appointed as parish ‘giving director’ and provision is made for special training and oversight by a diocesan ‘Christian giving adviser’.113 If the parochial church council opens a missionary or charitable purposes fund, and the purpose for which it was established has been fulfilled (or has lapsed) there may be an obligation to return moneys given by donors or if this is not possible to apply the fund to a related object.114 A parish may acquire funds through the letting of parish property and the sale of realty and personalty.115

The Quota System

The quota system organizes the acquisition of funds, accumulated at diocesan or parochial level, by bodies within the church for application to prescribed ecclesiastical objects. The dioceses transfer to the Central Board of Finance, the Church Commissioners, and the Pensions Board funds determined in accordance with a table of apportionment (based on actual and potential income) approved by General Synod. The diocese’s contribution is derived, in turn, from contributions made by the parishes.116 The quota (or ‘parish share’) has been described as ‘a system of voluntary taxation’ whereby ‘each parish church is assessed for an annual contribution to diocesan funds’.117 It (p.479) has been defined by synodical measure as ‘an amount to be subscribed to the expenditure authorised by diocesan synods’.118

The request for payment is made either by the diocesan synod or by the deanery synod. The diocesan synod directs the diocesan board of finance, by virtue of a power conferred by measure,119 to frame a draft budget which (as we have seen) the board submits to the synod’s standing committee, which in turn ‘may make to the board and the synod any recommendation thereon as it thinks fit’.120 The synod then by resolution either apportions the expenditure among the parishes or delegates that function to the deanery synods (on which the parishes are actually represented).121 By measure, ‘[i]f the diocesan synod delegate to deanery synods functions in relation to the parishes of their deaneries, and in particular the determination of parochial shares in quotas allocated to the deaneries, the deanery synod shall exercise those functions’.122 There is no legal framework for the determination of the quota. The process of assessment is not governed by synodical measure and each diocese develops its own norms to regulate the assessment, which, broadly, are made according to the social and economic characteristics of each parish: some are based on potential income, some on actual income and ability to pay, some on average adult attendance at services, some on the size of the electoral roll, others on the number of clergy in a parish, and many on combinations of these.123 Whilst no synodical measure imposes any express responsibility on the parochial church council to find and provide funds which will constitute the quota, it is the council which makes the contribution; this is paid to the diocesan board of finance which distributes the fund to the appropriate authorities for the payment of inter alia stipends, pensions, and ministry and training costs.

Whilst it may not be a tax in the strict legal sense the quota bears some of the characteristics of a tax or charge. Ordinarily, a tax or charge is understood to be a contribution levied on persons, property, income, or transactions, the contribution being assessed proportionately to fixed criteria (such as the value or amount of the object taxed or ability to pay), for the purpose of financing public services.124 A key element in the concept of a tax or charge is that of a (p.480) demand which if not met may lead to the imposition of a sanction.125 Often the quota system is described in diocesan norms as giving rise to an ‘obligation’, a ‘liability’, a ‘responsibility’, or a ‘commitment’ to pay; some dioceses classify the quota as a ‘request’ to contribute, or ‘encourage’ its payment.126 Whilst describing it as a ‘voluntary payment’, exceptionally norms prescribe that the quota should be seen ‘as a matter of the greatest obligation…the first charge on a parochial budget’; sometimes they prescribe that ‘making good the shortfall (for whatever cause) in payment of its Share by a parish is the responsibility of the other parishes in the Deanery concerned as determined by the Deanery Standing Committee’ and that ‘[a] poor record in paying its Share is always taken into account when loans for diocesan funds are requested’; and an appeal procedure is laid down when an assessment is questioned.127 If, as a matter of fact, the exchanges between the diocesan synod or deanery synod and the parish are in the nature of a demand, and if consequences flow from its non-payment, then an element of compulsion may be present. Whether the parochial council is under a legal obligation to pay a demand for the quota is a matter of debate. Two lines of argument suggest that no obligation arises. First, one of the ‘functions’ of a parochial church council is ‘putting into effect any provision made by the diocesan synod or the deanery synod, but without prejudice to the powers of the council on any particular matter’.128 However, in framing an annual budget required for the maintenance of the work of the church in the parish ‘and otherwise’, the council has a ‘power’ ‘to take such steps as they think necessary for the raising collecting and allocating of such moneys’; crucially the council has a ‘power’ jointly with the minister ‘to determine the objects to which all moneys to be given or collected in church shall be allocated’.129 Secondly, if the matter were tested judicially, a demand for payment would in all probability be unlawful: such demands can be made only upon the clearest express authority of a parliamentary statute which, as a matter of judicial construction, would be interpreted strictly.130 As synodical measures enjoy the same authority as parliamentary statutes, General Synod could in theory enact a measure imposing an obligation to pay the quota.131

(p.481) On the other hand, a legal obligation to pay the quota might arise by way of a multipartite contract. Key parties to the quota arrangement possess contractual capacity: the diocesan board of finance, the diocesan parsonage board, the central board of finance, the Church Commissioners, and the parochial church council are all corporations. The quota is used to meet the services provided by these bodies. The basic question is whether the parochial church council has implicitly entered into an agreement with these corporations, with the diocesan or deanery synods as statutory bodies mediating between the corporations and the council, to pay the quota. A multipartite contract to supply and enjoy services rendered (the provision of stipends, housing, pensions, and so on) may generate an obligation to contribute to the cost of those services. Whether there is a contract depends on the intentions and conduct of the parties involved: for an orthodox contract to arise an offer and acceptance may be implied from the conduct of the parties (such as the actual provision and enjoyment of services),132 consideration may be supplied by the existence and distribution of benefits and burdens as between the parties.133 Above all there must be an intent to create legal relations and to treat the agreement as binding.134 A contract may also arise by way of an estoppel: if the parish represents that the quota will be paid, and this representation is relied upon by church authorities, it may be held to be inequitable to avoid payment;135 if by convention the parties have acted upon the agreed assumption that the quota is to be paid, (p.482) the parish may be estopped from refusing payment.136 A quasi-contractual obligation to pay may also arise from customary practice.137

Whilst in a critical case of withholding the quota it is wholly unclear whether either of these approaches might apply, they may be used by General Synod to form the basis of legal regulation of the quota system. First, it has been assumed that General Synod is legally competent to create by measure a compulsory contribution scheme: models for such a scheme already exist.138 Secondly, a contractual model may be employed by General Synod in the enactment of a measure to render an agreed scheme for payment legally enforceable: a model exists in the form of statutory agreements to share church buildings and to contribute to the maintenance of shared buildings.139

Roman Catholic Canon Law

Arrangements in the Church of England are rather different from those in the Roman Catholic Church. Roman Catholic canon law recognizes for the church an innate right to require from the faithful whatever is necessary for the ends proper to it (c.1260). Whilst the faithful have the right to give freely to the church, the diocesan bishop is bound (under c.1261) to admonish them concerning the obligation (under c. 222) to assist with the needs of the church so that the church has what is necessary for divine worship, for apostolic works, for works of charity, and for the sustenance of ministers. The faithful have a specific canonical duty ‘to contribute to the support of the church by collections…according to the norms laid down by the conference of bishops’ (c.1262). ‘Offerings’ are subject to special regulation. As a general principle, (p.483) the minister may ask nothing for the administration of the sacraments beyond the offerings defined by the competent authority, always being careful that the needy are not deprived of the sacraments through poverty (c. 848). Offerings must be determined by the meetings of bishops of each ecclesiastical province (c. 1263). In accordance with the approved custom of the church, any priest who celebrates a mass may accept an offering to apply the mass for a specific intention (cc. 945–6). Any appearance of ‘trafficking or commerce’ is forbidden (c. 947) and it is for the provincial council to determine by decree the amount of the offering (cc. 952, 1264(3)).140 The local ordinary may prescribe the taking up of a special collection for specific parochial, diocesan, national, or universal projects which must thereafter be transmitted to the diocesan curia (c. 1266). These moneys are then put into, inter alia, the diocesan common fund. Canon law governs directly the Roman Catholic Church’s equivalent to quota in the Church of England. The diocesan bishop has a right ‘to impose a moderate tax on public juridic persons subject to his authority’. Taxa should be proportionate to income and may be imposed only after hearing the diocesan finance council and the presbyteral council. The bishop may also impose an extraordinary (but moderate) tax on other physical and juridic persons ‘only in cases of grave necessity’ and with due regard for particular laws and customs.141

The Development of Funds: Investments

Roman Catholic canon law provides a minimal structure for the regulation of investment and assigns to the diocesan ordinary a central position of oversight. Money realized from alienation of property is either to be expended in accord with the purposes of the alienation or it may be invested carefully for the benefit of the church (c. 1294). With the consent of the ordinary, administrators of temporal goods may invest only money which is left over after expenses have been met; a report on investments must be made to the ordinary at the end of each year (c. 1284(2)). The finance council may invest only with the approval of the ordinary.142 Moneys assigned to a particular endowment (p.484) are to be invested cautiously and profitably, for the benefit of the foundation, with the approval of the ordinary who must consult interested parties and the diocesan finance council (c. 1305). In addition to these canonical provisions, civil law is applicable to Roman Catholic charitable trustees exercising powers of investment.143

The position in the Church of England is different: direct episcopal control is minimal. Generally, the distribution, scope, and control of powers to invest depend on the investing body or fund in question. The subject is regulated principally by the Church Funds Investment Measure 1958. This legislation applies to the corporate funds of the Central Board of Finance, the corporate funds of any diocesan authority, and the funds of any church educational endowment; it also applies to any funds held on trust by the Central Board of Finance, any diocesan authority, or any other persons or bodies for exclusively charitable purposes connected with the Church of England.144 The trustees may invest such fund (or part of it) by contributing the same to an Investment Fund or by depositing moneys belonging to such fund in a Deposit Fund. The contribution or deposit must be for an ‘authorized investment’. The trustees may invest notwithstanding anything contained in any trust instrument,145 and such investments are exempted from the jurisdiction of the Charity Commissioners.146

The Investment Fund of the Central Board of Finance is held and administered as a common fund for the benefit of the funds contributed to it. Any moneys comprised in an Investment Fund ‘shall from time to time be invested at the discretion of the [Board] in the purchase of any investments or property of any sort either real or personal’ (whether or not they are investments ‘authorized by the general law for the investment of trust funds’) or upon loan on the security of any property of any description or without security. This may be done provided the Board by instrument in writing declares that the power of investment shall be restricted in the manner declared in the instrument. Church bodies do not have an entitlement to contribute to the fund as of right but must obtain the consent of the Board which has a discretion to refuse. When the contribution is made from an existing trust fund, consents must also be obtained as required by the trust instrument. The Board must keep accounts of the assets and liabilities of each investment, income, and expenditure and the accounts must be audited.147 Moneys which the Board does not think fit to (p.485) invest immediately may be placed in the Deposit Fund, the power to deposit being subject to any consents required by a trust instrument. The Board has a discretionary power to determine the terms upon which money might be deposited (including the rate of interest and the length of notice required for withdrawals). Sums deposited may be invested inter alia in shares or securities of any registered building society and in any investments for the time being authorized by law for the investment of trust funds. The Board must keep accounts which are to be audited.148

The Pensions Board may invest any moneys available for investment in any investment falling within Schedule 1, the Trustee Investments Act 1961 (in which case control of investment is effected by the terms of that statute), in the acquisition of freehold or leasehold land in England and Wales, or in any investment fund or deposit constituted under the Church Funds Investment Measure 1958 (in which case control is effected by the terms of that Measure).149 The exercise of investment powers by a diocesan board of finance is regulated by the Church Funds Investment Measure 1958,150 and subject to directions given by the diocesan synod for which it acts as financial executive.151 With regard to the Diocesan Parsonages Fund a diocesan parsonage board has the same powers of investment as trustees of trust funds. However, the diocesan synod may provide by scheme that the powers of the board in respect of the management of the Parsonages Fund and the receipt of moneys payable into that Fund shall be exercisable by the diocesan board of finance on behalf of the parsonages board.152 The parochial church council has a limited power of investment of trusts funds held by it for charitable purposes.153 Whilst ordinarily the council can act only with the consent of the diocesan authority,154 with respect to investments, where the diocesan authority acts as the custodian trustee, the Public Trustee Act 1906 applies and the decision lies wholly with the council: the diocesan authority must concur in carrying out the investment unless this involves a breach of trust.155

(p.486) 156157Harries (Bishop of Oxford) and Others v Church Commissionersinter aliaraison d‘être158

The Application of Funds: Mandatory Expenditure

As we have seen, the law of the Church of England commonly confers discretionary powers on ecclesiastical authorities to dispose of funds as they think fit for purposes connected with the church.159 Sometimes, however, the law imposes duties on authorities to apply funds for specified purposes. In so (p.487) doing it indirectly confers rights entitling bodies and persons to make claims upon funds held.

Insurance of Property

Insurance of ecclesiastical property is governed by both church-made and state-made law. In the Roman Catholic Church, administrators of goods are under a canonical duty to take care that no property entrusted to them is lost or damaged, to Hake out insurance policies for this purpose, insofar as such is necessary’ and to ensure that the prescriptions of civil law in this regard are met.160 With respect to the Church of England, one duty (arising from synodical measure) of the parochial church council is to arrange ‘insurance of the fabric of the church and the goods and ornaments thereof.161 Where any property is vested in the diocesan authority, the council must keep the authority indemnified with regard to all insurance premiums payable in respect of the property and all costs, charges, and expenses incurred by the authority in relation to the insurance of the property in question.162 The duty to insure is not, however, unqualified. The terms of the insurance arrangement and the nature and extent of contractual obligations to pay premiums, needless to say, will be limited by the funds available. The Legal Advisory Commission has recently formulated norms of good practice. Advice should be sought of an insurance company ‘experienced in the insurance of ecclesiastical buildings’. The ideal is to insure the building against the costs of restoring it, in the event of its destruction, to its earlier condition together with ancillary expenses such as professional fees and hiring a substitute building for use during reconstruction. With more ancient or larger buildings this may be an unattainable ideal and the premium may prove too costly. In such cases ‘the insurance principle of average must be borne in mind…the rule that if a property is insured for only a proportion of its value and damage occurs to a part of the property insurers will be liable to pay only the same proportion in respect of the loss that the sum insured bears to the full restoration cost’. In relation to church treasures, the Commission advises that ‘there is no legal requirement for insurance to cover the full market value and that a practical compromise may be the insurance of any such objects for a sum which would cover the cost of a good modern replacement’.163 In addition, many diocesan regulations require insurance cover to be updated regularly.164 The adequacy of insurance cover is usually policed by visitation.165 Many dioceses operate a group scheme (organized by the diocesan board of finance) in co-operation with (p.488) the Ecclesiastical Insurance Group, and diocesan norms often direct parishes to join the scheme.166 Insurance arrangements and terms have given rise to a number of diocesan norms requiring greater security measures to be taken by parochial church councils.167

Third-party (or public liability) insurance, covering accidents or injuries involving members of the public, poses a special problem. With regard to the Church of England it has been suggested that ‘under the law of tort, if a member of the [parochial church council] is aware of the dangerous condition of a church building and takes no steps to prevent injury to third parties, he could be liable in the tort of negligence’.168 The view of the Legal Advisory Commission is that the council should treat this insurance ‘as of the highest priority’.169 No obligation to insure against public liability, however, is imposed at present by internal church law. The stimulus to arrange third-party insurance flows from civil law duties. For the purposes of the Occupiers’ Liability Act 1957, under which occupiers of property to which members of the public are admitted owe a duty of care to those persons and are liable to pay damages for breach of that duty, the Legal Advisory Commission has advised that ‘occupier’ includes the parochial church council and the incumbent. In relation to a particular gravestone the responsible party is the person who erected it, and in relation to a closed churchyard (where liability for maintenance has passed to it), the local authority. During a vacancy, and where there is a priest-in-charge, responsibility may belong to the bishop.170 The duty applies to visitors and other persons lawfully on the property,171 but not generally to trespassers.172 The duty is to take such care as in all the circumstances of the case is reasonable to see that the visitors will be reasonably safe in using the property for the purposes for which they are permitted to be there.173 To this end the duties imposed by church law and civil law to maintain the property to the required standards may be treated as designed to satisfy the standard required by the general civil law duty of care.174

Moreover, under the Employers’ Liability (Compulsory Insurance) Act 1969, when an ecclesiastical body acts as an employer it must insure against its liability if an employee suffers injury or disease arising out of and in the course of employment.175 Consequently, the Legal Advisory Commission advises that parochial church councils ‘should insure against liability to claims by persons using the church, churchyard or any parochial building or land and if they are employers against liability to compensate their employees, (p.489) whether full or part-time, for injury or disease suffered through their employment’.176 Under the Repair of Benefice Buildings Measure 1972 the diocesan parsonage board must insure all parsonage houses and glebe buildings in the diocese. It has a duty to pursue all insurance claims in respect of this property.177

Remuneration and Stipends

According to Roman Catholic canon law when ordained clergy dedicate themselves to the ecclesiastical ministry ‘they deserve a remuneration which is consistent with their condition in accord with the nature of their responsibilities and with the conditions of time and place’; remuneration ‘should enable them to provide for the needs of their own life and for the equitable payment of those whose services they need’.178 However, clergy are canonically bound ‘to cultivate a simple style of life and are to avoid whatever has a semblance of vanity’; income surplus to needs should be used for the good of the church and for works of charity.179 The conference of bishops is under a duty to manage a clergy fund and to establish norms for the provision of proper living for clerics.180 Lay people engaged in the service of the church have a right to worthy remuneration befitting their condition whereby, with due regard to the provisions of the civil law, they may provide for their own needs and the needs of their families.181

In the Church of England rights to remuneration for work are distributed according to the position held. Ordinarily rights to remuneration are statutory though in some cases they may be contractual. Parish clerks and sextons are entitled to such salaries as are determined by the incumbent and parochial church council.182 Remuneration (if any) for organists is governed by the terms of the contract entered on appointment by an incumbent with the (p.490) agreement of the parochial church council.183 The same applies to lay and ordained persons employed in sector ministry.184 Readers and lay workers usually receive no remuneration but when they are paid ‘it may be possible to infer that they are working under a contract of employment’ in which case they are entitled to remuneration as prescribed by that contract.185 Ordinarily written particulars of employment will contain terms as to the scale or rate of remuneration.186 However, if a contract of employment is silent, under secular law a reasonable remuneration is payable, assessed by way of quantum meruit.187 Persons may not be licensed as stipendiary readers or lay workers unless the bishop is satisfied that adequate provision has been made for the stipend and for insurance against sickness or accident.188 The position of ordained clergy may be summarized as follows. Full-time stipendiary ministers in parochial appointments (as incumbents, priests-in-charge, team vicars, and assistant curates) are paid (and housed) through the Church Commissioners from the appropriate diocesan stipends fund. Part-time stipendiary ministers in parochial appointments holding an additional appointment in the sector ministry are paid by the Church Commissioners with income from additional appointments forming part of the stipend. Part-time priests-in-charge and assistant curates are paid by the Church Commissioners.189 Indeed, a bishop cannot admit a person into holy orders unless satisfied that ‘he is provided of some ecclesiastical office’ within the diocese to which, with the exception of non-stipendiary ministers, remuneration ordinarily attaches.190

The Church Commissioners act as the Central Stipends Authority, a body established by and responsible to General Synod, and stipends to incumbents and most assistant ministers are paid from the diocesan stipends funds administered by the Commissioners. However, though the Commissioners as a matter of ecclesiastical practice recommend national maxima and minima (p.491) each year, it is the diocese which calculates the stipend payable.191 The Commissioners must apply moneys standing to the credit of the income account of the diocesan stipends fund ‘in providing or augmenting the stipends or other emoluments of incumbents, assistant curates licensed under seal and other persons who are declared by the bishop to be engaged in the cure of souls within the diocese’. Once the stipend is determined, a right to it arises: the moneys ‘shall be so applied in accordance with directions from time to time given, with the concurrence of the Diocesan Board of Finance, by the bishop or a person duly authorised for that purpose by him’. These directions, in turn, must be ‘consistent with any directions given by the Commissioners, in the exercise of their functions as the Central Stipends Authority, with respect to the forms and levels of the pay of those persons’. Moreover, the bishop (or a person authorized by him) must, in determining the directions to be given, ‘have regard to any advice given by the Commissioners’ with respect to the application of the money.192 The diocesan pastoral committee has a special responsibility for ‘the provision of appropriate spheres of work and conditions of service for all persons engaged in the cure of souls and the provision of reasonable remuneration for such persons’.193

Ordained clergy and persons in lay ministry may also receive income from a variety of other sources. Incumbents have a right to any endowments generated by the particular benefice. The Church Commissioners must pay from the diocesan stipends fund a ‘guaranteed annuity’ comprising the net annual endowment income of the benefice or £1,000 (whichever be the less) towards the incumbent’s stipend.194 Where the guaranteed annuity is £1,000, if the net annual benefice income exceeds that sum, the incumbent is entitled to receive an annual personal grant of a sum equal to the amount of the excess.195 Both the guaranteed annuity and the personal grant are payable by such instalments and on such days as the Commissioners may determine.196 The Commissioners have a special power to pay out of their General Fund such sums as they think fit towards the stipend of archdeacons who also have a right to an annual grant of not less than that payable as endowment income of the archdeaconry.197 The income account of the diocesan stipends fund is charged with the payments towards the stipend or other emoluments of any assistant curate or clerical or (p.492) lay assistant engaged in the cure of souls in any parish of an annual sum of the same amount as that which would be applicable by the Commissioners for augmenting these. Any question of the amount to be allocated must be determined conclusively by the Commissioners.198 In all these schemes, there is no explicit right of appeal against an allocation.199 The incumbent of a benefice has a right to Easter offerings.200 Other income may be derived from direct parochial giving, parochial fees (discussed above), and income from local trusts. In calculating the stipend, these are taken into account.

There is no formal internal law dealing with expenses of ordained and lay people engaged in parochial ministry. Whilst the parochial church council is strictly under no legal duty to pay expenses,201 on the basis of guidance issued by the Church Commissioners as the Central Stipends Authority202 diocesan norms commonly assume a responsibility on the parochial church council to do so. Typically, norms prescribe that the parochial church council and the minister involved must agree on a policy about the scale and timing of reimbursement and the items which it covers; sometimes they require an annual review and provide that any advice needed is to be sought from the archdeacon.203 For national insurance and taxation purposes clergy are classified as employed persons in receipt of emoluments and pay national insurance contributions. Consequently, they are eligible for maternity, sickness, and industrial injury benefits. The Church Commissioners, treated as the employer for these purposes, are obliged to pay the national insurance contribution and are also responsible for the deduction of income tax.204 Many diocesan norms contain guidance about sickness benefits.205

Special provisions apply to the remuneration of archbishops and bishops. An annual stipend is payable to them together with such greater sum as the Church Commissioners may from time to time determine and various allowances. Sums payable are fixed periodically by schemes confirmed by Order in (p.493) Council. In making the scheme the Commissioners must consult the diocesan bishop and board of finance. If the bishop in whose favour the scheme is to be made remains in occupation of the see, the scheme must be made at his request and only with his approval. A scheme may be amended with the approval of the Standing Committee of the General Synod.206 Provision also exists for the payment of stipends, augmentations, grants, and expenses to cathedral staff.207

Compensation

The implementation of rules, both on discipline and on administrative reorganization, may result in loss of office or other ecclesiastical post. Legislators in the Church of England have dealt with this problem by devising compensation and gratuity schemes. The rules have been developed piecemeal, only in relation to some keys areas, and no explicit provision exists for compensating loss of office suffered by licensed clergy, readers, lay workers, or musical directors, for example, all of whom may be in receipt of an emolument. Whilst the underlying rationale for compensation in civil law is the suffering of harm or unfairness by the compensated party,208 some ecclesiastical compensation schemes operate when there has been no manifest unfair treatment of the payee.

First, compensation may be paid when loss results from an administrative decision of the church. Provision exists for ‘conferring rights to compensation on incumbents of benefices, vicars in team ministries, and archdeacons whose benefices or offices are dissolved, abolished, vacated, or resigned’ as a result of a pastoral reorganization scheme.209 Loss includes that arising from ceasing to occupy the parsonage house and expenses arising from a change of residence. The right to and amount of compensation payable are determined in the first instance by the diocesan pastoral committee but the claimant has a right of appeal to a tribunal. Compensation consists of periodical payments or a lump sum payment or a mixture of these. In assessing quantum the emoluments of any ecclesiastical office to which the claimant has been or is to be appointed (or of any other regular remunerated employment in which he is or is to be engaged) must be taken into account. If a claimant refuses without ‘good and (p.494) sufficient reason’ to accept an ecclesiastical office which in the opinion of the committee or tribunal is reasonably comparable to the benefice or office in respect of which compensation is claimed, the committee or tribunal may take into account the emoluments of the office so refused. If a person claiming or receiving compensation under these provisions executes a deed of relinquishment of orders, becomes a member of a religious body not in communion with the Church of England, or becomes disqualified from holding preferment (under the Ecclesiastical Jurisdiction Measure 1963) the claim may be refused or, as the case may be, no further compensation shall be made. The claimant receiving periodical payments must disclose to the pastoral committee any remunerated employment for the purposes of adjusting a periodical payment; failure to do so enables the committee to direct its repayment or any excess as they think just and that amount is recoverable as a debt due to the diocesan board of finance; an appeal lies to the tribunal against such a direction.210

Secondly, whereas in the above arrangement compensation results from loss not arising through the ‘fault’ of the claimant, under the following scheme compensation is paid where loss occurs through the unwillingness of a person to accept an ecclesiastical development. The Ordination of Women (Financial Provisions) Measure 1993 was designed, as its Preamble states, ‘to make provision as to the relief of hardship incurred by persons resigning from ecclesiastical service by reason of opposition to the ordination of women as priests’. Every clerk in holy orders, deaconess, or licensed lay worker who was in whole-time stipendiary and pensionable ecclesiastical service for not less than five years,211 is entitled to receive a resettlement grant and periodical payments as compensation.212 A payment may not be made unless and until the claimant makes within the prescribed time limit a declaration that he ‘would not have resigned but for [his] opposition to the promulgation of the Canon…enabling a woman to be ordained to the office of priest’.213 A resettlement grant must be a single payment of an amount equal to three-tenths of the national minimum stipend for the year in which the application for the grant was made or such greater amount as the Pensions Board may, with the concurrence of the Church Commissioners, determine. A grant must not be paid unless the Board is satisfied that the applicant was, immediately before the material time, residing in accommodation made available to undertake the service from which the person has resigned.214 Periodical payments, made (p.495) monthly, cease to be payable when the person attains retiring age, receives a pension, or re-enters whole-time stipendiary ecclesiastical service.215

The Board may also provide such financial benefit, on application made to it by ‘any person’ not being an ordained minister, deaconess, or licensed lay worker, by way of periodical payments, grant, loan, or otherwise as it thinks fit. It may do so only if satisfied that, within the period of ten years immediately after the promulgation of the Canon, the applicant or any person on whom the applicant is dependent (or was dependent immediately before that person’s death) has ceased to hold an office or employment or to be a member of a religious community consequent on his resignation therefrom. The person must have made the relevant declaration and the Board must be satisfied that in consequence ‘the applicant has suffered or will suffer financial hardship’. The Board, in determining whether financial benefit should be provided and its amount, must have regard inter alia to the age and other circumstances of the applicant, any special need in respect of housing or training for suitable employment, the extent to which the applicant provides or might reasonably be expected to provide financial support for any person dependent upon him, and all other relevant circumstances.216 Periodical payment may be refused, suspended, or reduced on account of other employment undertaken by the applicant, who must furnish the Board with details of this.217

The Pensions Board administers the system of benefits and the Church Commissioners must make the necessary payments to the Board out of their General Fund.218 The applicant may appeal against the Board’s determination to a special tribunal.219 In this arrangement compensation is paid to a person for a loss caused by the church’s decision to ordain women as priests. Whilst on one hand compensation may be treated as properly paid in so far as the recipient’s conscientious action is without fault, on the other it may be thought that the payment is improper unless the assumption is made that the church was at fault in ordaining women (being the stimulus for the payment).

Thirdly, compensation may be paid when loss results from the fault of the payee; this model is entirely inconsistent with the normal rationale for compensation. Under the Incumbents (Vacation of Benefices) Measure 1977 (as amended), after proceedings are instituted to deal with a serious breakdown of pastoral relations, if the incumbent resigns or the bishop issues a declaration (p.496) vacating the benefice (and here the incumbent may have contributed to the breakdown), ‘the incumbent shall be entitled to compensation for any loss suffered by him in consequence of his resignation or the vacation of the benefice’.220 Loss includes that arising from ceasing to occupy the parsonage house or other residence and any expenses arising from change of residence. The system for determining loss and quantum is the same as that for compensation for dispossession under a pastoral scheme.221 These arrangements are unusual in that compensation is given when the payee may have contributed to the loss suffered. There is no guidance in the Measure to reduce compensation in accordance with the degree of the incumbent’s contribution to the breakdown. It was decided in Re Flenley that compensation is payable regardless of fault on the part of the incumbent ‘for it is the clear intention of this Measure that the vacation of the benefice is for pastoral reasons and is not punitive in its purpose’; in this case it was held by the Canterbury Appeal Tribunal that the plain wording of the Measure entitled the claimant to compensation for any loss incurred until the compulsory retirement age of seventy.222

These piecemeal Church of England provisions may be contrasted with Roman Catholic canon law. As well as a general system of financial provision in the event of removal from office,223 Roman Catholic canon law operates a system of ‘indemnification actions‘: ‘[a]nyone who unlawfully inflicts damage upon someone by a juridic act, or indeed by any other act placed with malice or culpability, is obliged to compensate for the damage inflicted.’224 In the Church of England no equivalent provision exists for compensation payable as a result of unlawful disciplinary proceedings (such as a suspension) or action (such as the revocation of a licence). Synodical measures and canons are consistently silent on the matter. As a basic principle, the civil law principles of compensation for unfair dismissal do not apply to non-employed office-holding personnel of the church. The church’s appellate courts possess no jurisdiction to order an award of compensation against a censure unlawfully imposed by a lower court; the power is simply to overturn the censure.225

(p.497) Pensions

Roman Catholic canon law requires provision to be made for ordained ministers to have social assistance by which their needs are suitably met if they suffer from illness, incapacity, or old age: specific arrangements are supplied by particular norms.226 As to non-ordained persons involved in ecclesiastical work, by canon administrators must observe meticulously the requirements of civil employment law.227 With respect to the Church of England, under the Clergy Pensions Measure 1961 as amended, on retirement any clerk in holy orders, deaconess, or licensed lay worker (a ‘scheme member’) has a basic right to receive from the Church Commissioners a pension for the remainder of life.228 No contribution during the period of service is required. The right arises if the scheme member has completed a qualifying period of pensionable service of not less than two years or a succession of periods with or without intervals amounting to no less than two years. The Pensions Board may, however, with the concurrence of the Church Commissioners, substitute a shorter period in exceptional circumstances.229 Pensionable service is ‘stipendiary ecclesiastical service’, service rendered under the direction of a diocesan bishop or carried on in furtherance of the spiritual or administrative work of the church and recognized as such by a diocesan bishop.230 Any period of service for which a scheme member is party to any pension or superannuation scheme other than that established under the Measure (or one approved by the Pensions Board and the Commissioners) is not treated as pensionable service.231 The Board may enter a pension agreement with a person who ceases to be a member of the scheme, or with any prospective scheme member, with respect to any service performed which may be treated as pensionable service; the agreement may require the scheme member to make contributions.232

The right to a pension accrues, and its rate is fixed (by reference to office and term of years served) according to whether the person retires on or after the retiring age or if he retires before attaining the retiring age, on the ground that he has become incapable through infirmity of performing the duties of his office; as to the latter the Board must be satisfied that the infirmity is likely to (p.498) be permanent.233 The rates of pension are fixed by reference to the office held and the term of years of served and may be augmented at the discretion of the Commissioners.234 There is no general power to suspend a pension except where the scheme member accepts and resumes listed ecclesiastical offices or has not attained the age of seventy in the case of a man or sixty-five in the case of a woman and after retirement performs pensionable service.235 The power to determine questions related to pensions, including whether pensionable service has been performed, vests in the Pensions Board itself though a right of appeal exists to the High Court, whose decision is final.236 The Pensions Board also administers moneys for spouses and dependants.237

Legal Officers and Proceedings: Fees and Legal Aid

In contrast with the Roman Catholic Church, in which the responsibility falls on the diocesan episcopacy,238 the Church of England organizes remuneration of ecclesiastical judges and legal officers on a national basis. The Fees Advisory Commission is empowered to make an order as to the annual fees to be paid to legal officers in respect of such of the duties of their office as are specified by the Commission. The legal officers covered are the provincial registrars, diocesan registrars (and their deputies), bishops’ legal secretaries, and chapter clerks. The order must be laid before General Synod and cannot come into force without its approval. The order takes effect as if it were a Statutory Instrument and is subject to annulment in pursuance of resolution of either House of Parliament. The Commission may make a similar order as to the fees to be paid in respect of such duties performed by ecclesiastical judges and legal officers as are specified by the Commission (not in the case of legal officers, being duties covered by the annual fees order). Any fee payable is recoverable as a debt.239

(p.499) Like the state and the Roman Catholic Church,240 the Church of England operates a system of legal aid to assist those involved in ecclesiastical legal proceedings. General Synod must continue and maintain a Legal Aid Fund to which the Synod and the Church Commissioners may contribute such sums as each from time to time decides. At every ordinary election to the General Synod its Standing Committee must appoint a Legal Aid Commission charged with the duty of administering the Fund which is held by the Central Board of Finance on behalf of the Synod.241 Designated classes may apply to the Commission for financial assistance in respect of costs incurred in connection with designated proceedings. On an application the Commission may issue a certificate authorizing the payment out of the Fund of the whole or part of costs incurred by the applicant as well as a certificate for the payment inter alia of a contribution towards those costs. In deciding an application, the Commission must consider the financial resources of the applicant (including those of the applicant’s spouse). Legal aid must not be granted if it appears to the Commission that the applicant could afford to proceed without legal aid. The Commission may not grant legal aid unless the applicant shows reasonable grounds for taking or defending the proceedings or being a party thereto. The Standing Committee of General Synod may make such rules as it considers necessary or desirable as to the procedure to be observed in an application, including the circumstances in which the Commission may amend, revoke, or discharge a certificate; the rules must be laid before and approved by General Synod.242

Conclusions

The Church of England’s legal structures dealing with the regulation of finance are comprehensive but complicated (if implemented, the recommendations of the recent Turnbull Commission will simplify them). This is, in part, the result of the evolution of the church’s legal system itself, and in part the existing (p.500) secular laws which are regulatory in nature. The introduction of complex internal structures has increased the financial burdens on the church. As in Roman Catholic canon law, the general schemes underlying this structure both facilitate and regulate those fund-holding institutions and bodies in terms of their powers and their accountability. However, some key areas, in contrast with Roman Catholic canon law, notably the quota system and insurance, operate without regulation by formal internal law. Diocesan norms go some way to regulate these matters. As with Roman Catholic canon law, but in substantially more detail, the law of the Church of England seeks to confer and protect basic rights to remuneration for ministry in a comprehensive fashion, though apparently no systematic rationale exists to regulate the increasing use by legislators of compensation schemes. The problem of compensation for unfair dismissal remains unaddressed.

Notes:

(1) For administrative services dealing with the finances of the Holy See see PB (1988): the Administration of the Patrimony of the Apostolic See is ‘to administer the properties owned by the Holy See in order to underwrite the expenses needed for the Roman Curia’ (Arts. 172–5); the Prefecture for the Economic Affairs of the Holy See supervises and governs temporal goods of those administrations dependent on the Holy See or of which the Holy See has charge (Arts. 176–9), COCLA 1167; see generally C. Ritty, ‘Changing economy and the new code of canon law’, The Jurist, 26(1966), 469.

(2) WAOB

(3) Whilst set up under the power conferred on General Synod by the SGM 1969, Sched. 2, Art. 10(2), the CBF is not classified as a ‘subordinate body’ of General Synod (see GS 1136, 3); it is not listed as exempt from the provisions of the Charities Act 1993. This Chapter does not explore the Corporation of the Church House, a charity incorporated by royal charter to own, provide, and run Church House Westminster. The Corporation is separate from the Central Board of Finance.

(4) GSSO, SO 97; WAOB recommends that the Board’s functions be transferred to the proposed National Council which would, in turn, delegate many of these to the Council’s Finance Committee (on which the dioceses would be represented) (5.38).

(5) GSSO, SO 98.

(6) SO 99

(7) SO 100

(8) SO 101

(9) SO 102

(10) SO 103

(11) SO 104

(12) Ch. 4WAOB

(13) Church Commissioners Measure 1947 (as amended in 1964 and 1970), ss. 1, 2.

(14) Ibid.

(15) WAOB: accepting that ‘[t]he Church Commissioners should remain as an important body which links Church and State’ (8.14), the Commission recommends that they continue as trustees of the church’s historic assets but would be ‘ring-fenced, so that neither the Commissioners nor any other body in the church could spend the capital from them unless authorised by legislation to do so’ (8.15). Along with composition changes (8.21), the Commissioners would carry out the functions of the present Assets Committee and some of the trustee functions of the Board of Governors (8.20); a new Assets Committee would oversee day-to-day management of the Commissioners’ portfolio but it would not—unlike the present Assets Committee—have exclusive power in all matters relating to the management of assets (8.22); an Audit Committee (with the existing external auditors) would scrutinize all aspects of the work of the Commissioners and the Assets Committee and report to the Commissioners; the Commissioners would (as now) have to report annually to General Synod and parliament (8.22, 23). The Commissioners would continue to determine and monitor asset policy and retain the power to sell, purchase, exchange, or let land (8.38), but allocation of income provided by the Commissioners would be transferred to the proposed National Council (8.39).

(16) S. 2.

(17) S. 10(4)-(6).

(18) For stipends and pensions see below; for the involvement of the Commissioners in transactions concerning glebe, parsonage houses, and redundant churches, supra chs. 15, 16; see also the Church Commissioners (Loans for Theological Colleges and Training Houses) Measure 1964, although as a matter of policy no loans are now made, the income for theological colleges being now derived from ‘fees’ paid by the Advisory Board for Ministry; New Housing Areas (Church Building) Measure 1954; Church Schools (Assistance by Church Commissioners) Measure 1958; Church Commissioners (Assistance for Priority Areas) Measure 1988.

(19) S. 4(1).

(20) Ss. 3,5(1).

(21) S. 5(1), Sched. 2; the Estates Commissioners are royal appointments and the Second Estates Commissioner a junior minister and (by custom) a member of the House of Commons.

(22) S. 5(4).

(23) S. 5(5).

(24) S. 6.

(25) S. 7, Sched. 4.

(26) S. 11; see also s. 10.

(27) S. 12.

(28) GSSOSO 95–6

(29) For criticism of its structures concerning investment see below.

(30) WAOB

(31) S. 23.

(32) S. 24.

(33) S. 24.

(34) S. 25.

(35) S. 17(1), (2).

(36) S. 18(1), (2).

(37) S. 19.

(38) Ss. 27–8; see also Church of England (Pensions) Measure 1988, s. 17.

(39) S. 26(1)(e), added by Clergy Pensions (Amendment) Measure 1967, s. 4(1).

(40) S. 34.

(41) MSODS, SO 106

(42) Ibid, SO 107.

(43) Diocesan Boards of Finance Measure 1925, s. 1.

(44) Ibid

(45) As contained in its memorandum and articles of association: its involvement in the acquisition, use, and disposal of property is discussed in Chs. 15 and 16.

(46) Companies Act 1985, ss. 384–94.

(47) MSODS, SO 108

(48) SO 109; SO 110 provides for the submission of supplementary budgets.

(49) SO 111

(50) SO 112

(51) SO 113

(52) Diocesan Stipends Funds Measure 1953, s. 1(1).

(53) Pastoral Measure 1983, s. 77(1).

(54) WAOB

(55) S. 2.

(56) S. 3.

(57) S. 4.

(58) S. 5.

(59) S. 7.

(60) Pastoral Measure 1983, s. 77. For some of the sums subscribed to the pastoral account see Ch. 15.

(61) S. 78, but this does not include salaries or wages of persons in the regular employment of the bishop, any board or committee of the diocese, or the Commissioners.

(62) Heritage and Renewal, The Report of the Archbishops’ Commission on Cathedrals (1994) Ch. 13

(63) Model Rules for Deanery Synods (1990), r. 69

(64) E.g. ODYB: IF, 262; Diocese of Bradford, Diocesan Manual (1987) BDM, J.7; SDDH, T.9, V.44–5; SDH, VI, C.2; CDH, 138; TBF, 8.1; PDH, M.2; GDM, B.4; LDHI, VI, 1.

(65) PCC(P)M, s. 4(1)(ii)(a)

(66) S. 7(i), (iv); diocesan norms commonly recognize the duty on the incumbent and the council to agree: Diocese of Bradford, Diocesan Manual (1987) BDM, M.3; for application of collections from confirmation services to be determined by the bishop see e.g. LDHI, III. 24.

(67) S. 9(3); see Ch. 8 for the parish treasurer.

(68) Marson v Unmack [1923] P 163; the incumbent and churchwardens, acting jointly, may dispose of alms collected at the offertory in a parochial chapel: Moysey v Hillcoat (1828) 2 Hag Ecc 30 at 56; Dowdall v Hewitt (1864) 10 LT 823; for Easter offerings as belonging of right to the incumbent, see e.g. CDH, 171; PDH, C.7.

(69) Re St Peter, Roy don [1969] 2 All ER 1233; this does not include the power to give security: ibid., 1237–8.

(70) supra Ch. 16.

(71) P. Carter and M. Perry, A Handbook of Parish Finance (3rd edn., London, 1992),ch. 7

(72) CRR, r. 9(1)-(3)

(73) PCC(P)M, s. 8; see OLAC, 195–6 for changes under regulations made pursuant to Part VI Charities Act 1993.

(74) CRR, r. 9(4)(d), App. II, para. 1(g); Diocese of Bradford, Diocesan Manual (1987) BDM, J.8 forbids appointment of a council member as auditor.

(75) supra Ch. 15.

(76) supra n. 1 for the Holy See.

(77) CIC c. 1271; c. 1272: where benefices still exist, the conference of bishops must supervise their management by norms approved by the Apostolic See. Diocese of Westminster, Parochial Administration Manual (1993) 1: for the purposes of civil law property is vested in and financial management is carried out by the Westminster Roman Catholic Diocese Trustee, a limited company and registered charity; major policy is determined by the Finance Board and the Diocesan Finance Committee approves budgets and monitors performance.

(78) CIC, cc. 1276–7

(79) Every juridic person must also have a finance council (c. 1280) which must act in accordance with cc. 1281–8; see also A. Farrelly, ‘The diocesan finance council: functions and duties according to the code of canon law’, Studia Canonica, 23 (1989), 149; CIC, c. 531: parish accounts and stole fees. Diocese of Westminster, Parochial Administration Manual (1993) 1.5: the parish is not a juridic person in civil law and parish trusts are held by the Westminster Roman Catholic Diocese Trustee; ibid., ch. 14 describes the provisions of the Charities Acts applicable to accounting.

(80) D. McClean, ‘State financial support for the church: the United Kingdom’, Church and State in Europe: State Financial Support, Religion and the School, Proceedings of the European Consortium of Church and State Research (Milan, 1992) 77 at 79

(81) One of the functions of the Central Board of Finance is to give encouragement to develop Christian stewardship.

(82) OLAC, 199

(83) GSSO, SO 46

(84) SI 1994

(85) 85 1995 Order, Part II, para. 7.

(86) Ecclesiastical Fees Measure 1986, s. 3(1).

(87) Church Commissioners, A Guide to Church of England Fees (London, 1986) 6,7: fees are ‘legally payable’ and ‘Any departure, as a general rule, from the practice of collecting fees would be undesirable’; for diocesan norms discouraging waiver see e.g. GDM, A.2; Diocese of Bradford, Diocesan Manual (1987) BDM, B.11; for assigning see PDH, C.4, 19, 20; ODYB: IF, 255; BRDSEI, AA; CDH, 103, 127; TBF, 4.6.

(88) GDM, A2

(89) Baptismal Fees Abolition Act 1872, s. 1.

(90) Baptismal Registers Measure 1961, s. 2.

(91) See also Ecclesiastical Fees Measure 1986, s. 3(2): a fee for solemnization of marriage in a licensed chapel is the amount fixed by order, but any provision in the licence as to whom it is payable continues to apply.

(92) Sched. Pts. I and II.

(93) CIC, c. 1464

(94) CCEJM, s. 14: the archdeacon has no power to award costs and must refer to the chancellor any petition for a faculty where he considers that any question of costs or expenses arises.

(95) EJM, s. 61

(96) EJM, s. 60

(97) Ecclesiastical Fees Measure 1986, ss. 4–6.

(98) Newsom, Faculty Jurisdiction of the Church of England (2nd edn., 1993) FJCE, 203; Hill, EL, 401.

(99) CCEJM, s. 13. S. 12 deals with archdeacons’ expenses).

(100) Re St Peter and St Paul, Scrayingham [1992] 1 WLR 193; if the parties have acted reasonably and honestly costs will lie where they fall: Re St Mark’s, Heydock [1981] 1 WLR 1164.

(101) Re St John, Chelsea [1962] 1 WLR 706: a petition and cross-petition failed and the petitioners were ordered to pay a third of the costs of the opposing parties; Re West Camel Church [1979] Fam 79: court fees were split between the parties; Re St Mary’s, Luton [1968] P 47: an unsuccessful opponent was ordered to pay most of the costs of the petitioner.

(102) Re St. Helen, Brant Broughton [1974] Fam 16; Re St Michael and All Angels, Torrington [1985] Fam 81.

(103) Ss. 58–63 (as amended).

(104) See supra Ch. 16 for charitable trusts.

(105) PCC(P)M, s. 7(ii)

(106) Compulsory Church Rate Abolition Act 1868, s. 1. For exceptions see ss. 3–5 and Watson v All Saints, Poplar, Vestry (1882) 46 LT 201; R v Churchwardens of St Matthew, Bethnal Green (1883) 50 LT 65 (CA), (1885) 53 LT 634 (HL); London County Council v Churchwardens of St Botolph, Bishopsgate [1914] 2 KB 660.

(107) R v St Marylebone Vestry [1895] 1 QB 771 (CA)

(108) PCC(P)M, ss. 7(iv), 9(3)

(109) OLAC, 69

(110) Marson v Unmack [1923] P 163; fit persons are appointed by the priest: Cope v Barber (1872) LR 7 CP 393 at 403

(111) OLAC, 72–97Heritage and Renewal

(112) P. Carter and M. Perry, Handbook of Parish Finance (3rd edn., London, 1992) 70

(113) SDHB, 64

(114) Fund-raising appeals are governed by the Charities Act 1993, ss. 59–63. See OLAC, 43: the House of Bishops in 1946 made recommendations to diocesan bishops about appeals: the archdeacon should be informed at least a month before a public appeal is made by any parochial authority to persons outside the parish or congregation, ‘and he may make regulations and request that the conditions set out in the Bishop’s report be observed’ (see Church Assembly, House of Bishops Report on Charitable Appeals, CA 824B). For the cy-près doctrine see G. Moffat and M. Chesterman, Trusts Law: Text and Materials (London, 1988) 637–42; Chichester Diocesan Fund and Board of Finance v Simpson [1944] AC 341; Re North Devon and Somerset Relief Fund [1953] 1 WLR 1260; Re Gillingham Bus Disaster Fund [1958] Ch 300, [1959] Ch 62 (CA).

(115) supra Chs. 15, 16.

(116) See Carter and Perry, Parish Finance, 26; some dioceses operate a ‘parish ministry contribution’ scheme separate from the quota which, like the quota, is based on a request (SDH, VI, C).

(117) MIECL, 92

(118) SGM 1969, s. 5(4)

(119) Diocesan Boards of Finance Measure 1925, ss. 1, 3.

(120) MSODSSO 108

(121) CRR, r. 24(6)

(122) SGM 1969, s. 5(4); WAOB recommends that the proposed National Council be assigned the task of managing arrangements for the redistribution of resources within the church and for the apportionment of national costs among the diocese (5.6).

(123) E.g. TBF, 4.4; WDHI, ch. 4, 209; LDHI, V, 1–2; NDIB, I, 8; for a general survey see The Political Economy of the Church, Portsmouth Diocese (1981) 3; missionary and charitable donations are often exempted from the assessment: see Carter and Perry, Parish Finance, 85.

(124) C. Whitehouse and E. Stuart-Buttle, Revenue Law: Principles and Practice (8th edn., London, 1990), ch. 1; Pryce v Monmouthshire Canal and Railway Co [1879] 4 App Cas 197; Metal Industries Ltd v Owners of the S.T. Harle (1962) SLT 114; Daymond v SW Water Authority [1976] 1 All ER 39.

(125) Congreve v Home Office [1976] QB 629 (CA); see also Leake v Commissioners of Taxation [1934] 36 WALR 66 (Aust).

(126) PDH, M.2: ‘Christian duty to give financially’; GDM, C.1: payment is ‘encouraged’; Diocese of Bradford, Diocesan Manual (1987) BDM, F: ‘commitment’; NDIB, I, 8: ‘request’; SDH, VI, C.1: ‘ask’.

(127) Diocese of Bradford, Diocesan Manual (1987) BDM, J.1–2

(128) PCC(P)M, s. 2(2)(c)

(129) ibid., s. 7(i), (iv)

(130) Bill of Rights 1689, Art. 4: ‘the levying of money for or to the use of the crown by pretence of prerogative without grant of parliament…is or shall be illegal’; Bowles v Bank of England [1913] 1 Ch 57; AG v Wiltshire Dairies [1921] 37 TLR 884; Commissioners for Customs and Excise v Cure and Deeley Ltd [1962] 1 QB 340; Sheffield City Council v Grainger Wines [1978] 2 All ER 70; Vestey v IRC [1980] AC 1148.

(131) Supra Ch. 3

(132) The Amazonia [1990] 1 Lloyd’s Rep 238 at 242; Re Charge Card Services [1989] Ch 497; Hart v Mills (1846) 15 LJ Ex 200: an offer to supply goods by sending them may be accepted by using them; Smith v Hughes (1871) LR 6 QB 597 per Blackburn J: ‘If, whatever a man’s real intentions may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms’; see also Supply of Goods and Services Act 1982, s. 12 (s. 15 imports an implied term that a ‘reasonable charge’ will be paid).

(133) Midland Bank Trust Co Ltd v Green [1981] AC 513: consideration is a benefit to the promisor and a detriment to the promisee and vice versa; a promise, express or implied, may constitute consideration: Thorensen Car Ferries v Weymouth Portland BC [1977] 2 Lloyd’s Rep 614. However, past consideration will not as a general rule be good consideration unless it is part of a ‘continuing transaction’—if the understanding was that the act to be paid for is made in advance and there is a subsequent promise to pay for it, this will be good consideration: Re Casey’s Patents [1892] 1 Ch 104.

(134) Rose and Frank Co v JR Crompton & Bros Ltd [1925] AC 445: promises based on ‘honour clauses’ not binding; cf. Home Insurance Co v Administratia Asigurarilor [1983] 2 Lloyd’s Rep 674: contractual intention may not be negatived by honour clause; Edwards v Skyways Ltd [1964] 1 WLR 349: promise of an ex gratia payment created an obligation to pay; for acceptance by silence see Western Electric Ltd v Welsh Development Agency [1983] QB 796.

(135) Robertson v Minister of Pensions [1949] 1 KB 227 per Lord Denning: ‘if a man gives a promise or assurance which he intends to be binding on him, and to be acted on by the person to whom it is given, then, once it is acted upon, he is bound by it’; if a person by conduct or words creates an expectation of payment, this may give rise to an estoppel: Inwards v Baker [1965] 2 KB 507.

(136) Amalgamated Investment and Property Co v Texas Commerce International Bank [1982] QB 84

(137) Bryant v Foot [1867]; for moral obligations to pay as enforceable see J Evans and Co v Heathcote [1918] 1 KB 418; promises to pay for services rendered under a legal duty to do so may not be enforceable, however, as being against public policy: Morgan v Palmer (1824), unless the party has acted beyond its duty: Glasbrook Bros v Glamorgan County Council [1925] AC 270; such a promise will be enforceable if there are no grounds in public policy against its enforceament: Ward v By ham [1956] 2 All ER 318. In providing services provincial and diocesan authorities are sometimes acting under a legal duty—a promise to pay for these may therefore be enforceable if there is no reason in public policy to prevent enforcement.

(138) Repair of Benefice Buildings Measure 1972, s. 19; the diocesan synod by scheme provides for the parsonages board to make an annual estimate of expenditure of the board and proposals for meeting it; the scheme may provide ‘for the payment’ by the parochial church council ‘of such annual contributions towards the estimated expenditure of the Board as may be determined in accordance with the scheme’; it must not be in excess of the sum approved by the diocesan synod and sums not needed are refunded; see also Endowments and Glebe Measure 1976, s. 39: liability for chancel repair is imposed on the parochial church council.

(139) One possible solution may be a multipartite contract, created under and regulated by synodical measure, between the parochial church council and the diocesan board of finance (acting as agent of the diocesan or deanery synod) entered into in consideration of services provided on their (or the church’s) behalf by the Central Board of Finance and/or the Church Commissioners.

(140) CIC, cc. 953–6

(141) CIC, c. 1263; see also c. 264 for episcopally imposed tax to provide for the needs of seminaries; G. L. Broussard, ‘Ecclesiastical taxation: an historical synopsis’, Catholic University of America JCL Dissertation (Washington, 1966). Diocese of Westminster, Parochial Administration Manual (1993), ch. 2.6: the assessment is based on the income of the parish which, if unable to pay, must complete a form requesting reduction: ‘The assessment must be paid by cheque in advance, or by standing order on a monthly or quarterly basis throughout the year. There must be no variation in this without prior consultation with the Finance Office’; see ibid. ch. 6 for covenanting.

(142) CIC, c. 1281 (for penalties for failure see c. 1377); the parish finance council has no express canonical power to invest: c. 537; for clerics investing see cc. 282, 286 and T. Smiddy, ‘Negotiatio’, The Jurist, 11 (1951), 486.

(143) Diocese of Westminster, Parochial Administration Manual (1993), ch. 2

(144) S. 2; Pastoral Measure 1983, s. 44(6) confers the same power on the Churches Conservation Trust.

(145) S. 3(1); s. 8: ‘trust instrument’ means inter alia any statute, measure, or trust deed affecting the administration of a fund to which the Measure applies.

(146) S. 4.

(147) WAOB

(148) Ibid., paras. 19–26

(149) Church of England (Pensions) Measure 1988, s. 14; Clergy Pensions Measure 1961, s. 33.

(150) S. 2(b).

(151) Diocesan Boards of Finance Measure 1925, s. 3.

(152) Repair of Benefice Buildings Measure 1972, s. 17(1).

(153) Church Funds Investment Measure 1958, s. 2(d) (‘any persons or bodies’); the same power would, it seems, vest in incumbents and churchwardens. For investments by cathedral bodies see Cathedrals Measure 1963, s. 21: the consent of Church Commissioners is required; see ss. 34–5 for loans and borrowing powers.

(154) PCC(P)M, s. 6(3)

(155) Public Trustee Act 1906, s. 4(2); OLAC, 203; diocesan norms often recognize the power of parochial managing trustees to invest independently of the holding trustee: e.g. Diocese of Bradford, Diocesan Manual (1987) BDM, J.5; LDHI, V.9.

(156) S. 6(3)(a), (b).

(157) Church TimesWAOB

(158) [1992] 1 WLR 1241: there was ‘no identifiable yardstick which can be applied to a set of facts so as to yield one answer which can be seen as “right” and the other “wrong”’.

(159) See also supra, Ch. 15.

(160) CIC, c. 1284(2)

(161) PCC(P)M, s. 4(1)(ii)(b)

(162) Ibid., s. 6(4)(b), (c)

(163) OLAC, 152 ff

(164) For diocesan norms and the Ecclesiastical Insurance Group see e.g. BRDSEI, AC; Diocese of Bradford, Diocesan Manual (1987) BDM, J.6; TBF, 4.7; GDM, C.3; SDDH, M.11–12; for parsonage house TBF, 7.3; PDH, D.7.

(165) SDH, II, D.2

(166) GDM, C.3

(167) SDHBGDM, D.11

(168) Carter and Perry, Parish Finance, 49

(169) OLAC, 153

(170) OLAC, 56

(171) Wildlife and Countryside Act 1981 (persons using private rights of way).

(172) OLAC, 56

(173) Occupiers’ Liability Act 1957, s. 2(1), (2).

(174) OLAC, 57supraCh. 16

(175) S. 1.

(176) OLAC, 154: ‘the limit of indemnity should not be less than £2 million’; questions may arise as to who precisely is the owner/occupier or employer, and therefore ‘any policy should insure the whole “church interest’”, i.e. the interests of bishop, incumbent, priest-in-charge, council, and churchwardens; Re St Helen’s, Brant Broughton [1973] 3 All ER 386.

(177) GDM, E.10

(178) CIC, c. 281(1)

(179) C. 282; see also cc. 531, 551, stole fees for remuneration of clerics.

(180) PO, 20

(181) CIC, c. 231(2)

(182) PCC(P)M, s. 7(iii), OLAC, 194: ‘These officers are the subject of a contract of service between the parish clerk or sexton on the one hand and the PCC and the incumbent on the other, and the ordinary law as to contracts of service applies’.

(183) OLAC, 188

(184) Ibid., 123

(185) Ibid., 124

(186) Ibid., 126

(187) See e.g. Way v Latilla [1937] 3 All ER 759, Powell v Braun [1954] 1 WLR 401; the same applies to sick pay: Mears v Safecar Security Ltd [1981] IRLR 99; this implied term is, however, excluded if there is any contractual term on the subject, even if simply in the form ‘such amount as X may determine’: see Re Richmond Gate Property Co Ltd [1965] 1 WLR 335.

(188) Canon E6(4); E8(3).

(189) The general scheme is often described in diocesan norms: e.g. NDIB, III.33; with regard to cathedral staff, the dean, provost, and 2 residentiary canons engaged exclusively in cathedral duties are paid by the Church Commissioners such stipends as the Commissioners may from time to time determine; the capitular body may pay additional stipends with the consent of the Commissioners: Cathedral Measure 1963, s. 28; remuneration for other ordained clergy or lay persons connected with the cathedral is paid by the Commissioners: ibid., s. 31; see ss. 30, 32 for removal expenses and grants for the acquisition, erection, improvement, or repair of houses of clergy holding office in the cathedral.

(190) Canon C5(1); supra Ch. 7.

(191) WAOB

(192) Diocesan Stipends Funds Measure 1953, s. 5.

(193) Pastoral Measure 1983, s. 2(3)(a).

(194) Endowments and Glebe Measure 1976, s. 1; for pastoral schemes see s. 1(3).

(195) S. 2; for pastoral schemes see s. 2(2) and for benefices held in plurality, s. 3.

(196) S. 5; what constitutes an endowment is to be determined conclusively by the Commissioners: s. 7; for quarterly payments see Ecclesiastical Commissioners (Powers) Measure 1938, s. 7.

(197) S. 6.

(198) S. 8(3); see also Ecclesiastical Commisioners (Curate Grants) Measure 1946.

(199) When a draft pastoral scheme deals with endowment income (Pastoral Measure 1983, s. 33) a right of appeal exists: supra Ch. 5

(200) ™ BCP, 262; Cooper v Blakiston [1907] 2 KB 688 at 700 (CA); [1909] AC 104 (HL); these are taxable: Slaney v Starkey [1931] 2 KB 148.

(201) PCC(P)M, s. 7

(202) The Central Stipends Authority, The Parochial Expenses of the Clergy: A Guide to their Reimbursement (1986)

(203) For diocesan norms recognizing a right to expenses enjoyable by incumbents, priests-in-charge, assistant curates, team vicars, deaconesses, readers, and lay workers see NDIB, III.34; Diocese of Bradford, Diocesan Manual (1987) BDM, B.12; PDH, C.8; GDM, A.3; BF, 4.4, 4.6; SDDH, K.39–40; WH, BP.17; LDHI, V.17; CDH, 167; SDH, V, C.3: these include postage, telephone, stationery, maintenance of robes, hospitality, and travelling expenses; ibid., II, B.5: ‘Every PCC should undertake to pay in full the expenses incurred by assistant staff in the course of their duties. The assistant staff member should submit a regular claim for these expenses, suitably itemised, to the treasurer of the PCC.’

(204) See Churches Main Committee, The Taxation of Ministers of Religion, Guidance Notes Revised 1991, Circular No. 1991/15.

(205) Diocese of Bradford, Diocesan Manual (1987) BDM, B.9; SDDH, K.32; NDIB, I, 7; for grants, loans, and help on occasions of debt see e.g. ODYB: IF, 256; NDIB, III, 40; PDH, C.9, G.1; TBF, 4.5; SDDH, K.33.

(206) WAOB

(207) WAOB

(208) I. T. Smith and J. C. Wood, Industrial Law (5th edn., London, 1993) 390 ff

(209) Pastoral Measure 1983, s. 26.

(210) Ibid

(211) S. 1(2): the claimant must not have attained retiring age and must not be in receipt of a pension; claims may be made up to 10 years after Feb. 1993.

(212) S. 1(1): such persons may also participate in a church housing scheme under s. 2.

(213) S. 7, Sched.

(214) S. 3.

(215) S. 4.

(216) S. 5.

(217) S. 6(1), (3); the Board must not exercise its powers such that the total amount of the emoluments in question and the periodical payments (if any) would be less than the national minimum stipend: s. 6(2).

(218) S. 8(1); the Board must act in consultation with the Commissioners and in accordance with such general directions as the Commissioners may give; when they give directions they must cause a report thereon to be laid before General Synod: s. 8(2); these may include directions which appear to them requisite or expedient for securing a due balance between the liabilities likely to be imposed on the General Fund and the resources available to meet those liabilities.

(219) S. 10; see supra Ch. 5.

(220) Ss. 4, 10, 13(1).

(221) S. 13(2), (3); Sched. 2.

(222) Re Flenley (1981) Fam 64 at 70 per Moore Ch; see also the decision of Calcutt Ch, In re Christ Church, Albany Street (1979) unreported (16 July).

(223) CIC, c. 192CIC: TC

(224) CIC, c. 128

(225) See supra Ch. 7 for loss of licensed office and unfair dismissal.

(226) CIC, c. 281(2); c. 1274: the conference of bishops must ensure that an institute exists which sufficiently provides for the social security of the clergy wherever social insurance has not been suitably arranged; c. 536: the diocesan bishop, taking into account norms issued by the conference of bishops, is to provide for the ‘suitable support and housing’ of resigned pastors on attaining 70; see COCLA, 1336 for the bishops conference of England and Wales provision, in accordance with c. 538(3), providing for the worthy maintenance and residence of retired and sick diocesan priests.

(227) CIC, c. 1286; see also c. 538; CCL: TC, 217, n. 127; J. Kinsella and W. Jenne, Fullness in Christ: A Report on a Study of Clergy Retirement (Washington, 1979).

(228) S. 1(1); Church of England (Pensions) Measure 1988, s. 1;see also Bishops (Retirement) Measure 1986, s. 7.

(229) S. 1(2), as amended by s. 1 of the 1988 Measure.

(230) S. 46(1).

(231) S. 1(4).

(232) S. 1(3), as amended by s. 1 of the 1988 Measure.

(233) Ss. 1(1), 3: a scheme member dissatisfied with the decision has a right of appeal to a Board, of 2 or more referees appointed by the Pensions Board, the decision of which ‘shall be final’; Clergy Pensions (Amendment) Measure 1972, s. 3: the Board may require further medical evidence.

(234) S. 2, Church of England (Pensions) Measure 1988, Sched. 1.

(235) S. 4, as amended by Church of England (Pensions) Measure 1988, s. 2 (diocesan and suffragan bishop, archdeacon, dean, provost, residentiary canon, or incumbent of a benefice).

(236) S. 38.

(237) Payne-Collins v Taylor Woodrow Construction Ltd [1975] 1 All ER 898

(238) CIC c. 1649

(239) GS 1157–8

(240) CIC, cc. 1465, 1649

(241) GS 1028TylersupraCh. 5

(242) Ss. 2–4; Church of England (Legal Aid) Rules 1995, GS 1160: by r. 11(5) the decision of the Commission is final; Sched. 1 sets out the proceedings covered: proceedings in any ecclesiastical court or before any commission, committee, or examiner in respect of an offence under EJM 1963; proceedings on an enquiry under IVBM 1977 conducted by the provincial tribunal; proceedings for compensation under that Measure and the Pastoral Measure 1983 (including an interview by pastoral committee); a minister, deaconess, lay worker, or stipendiary reader appealing against revocation of a licence by canon created under the Church of England (Legal Aid and Miscellaneous Provisions) Measure 1988, s. 7; and a person appealing against a proposed deposition from holy orders.