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Published online by Cambridge University Press: 11 September 2020
Following a brief history and explanation of the extent and role of the faculty jurisdiction, the article considers various reviews of its working, and that of the ecclesiastical exemption, starting with the Report of the Faculty Jurisdiction Commission in 1984 and the Newman Report in 1997. The Department for Culture, Media and Sport stated in 2005 that the operation of the ecclesiastical exemption would be monitored periodically, and in 2010 that it would be kept under review to ensure the required standards of protection were maintained. The article argues that a no-holds-barred review of the faculty system would now be appropriate, with a view to achieving a less cumbrous structural apparatus, with a markedly less restrictive approach to changes within unlisted churches and a more rigorous and expert approach to changes affecting listed churches.
This article was originally delivered as an Ecclesiastical Law Society Leeds Lecture on 6 November 2019, repeated as an ELS London Lecture on 19 February 2020. A few additions have been made, some in response to comments made on those two occasions.
2 Cripps, H, Practical Treatise on the Law Relating to Church and Clergy (eighth edition, London, 1937), p 147Google Scholar; Bursell, R and Kaye, R (eds), Halsbury's Laws of England, vol 34 (fifth edition, London, 2011), para 1068, n 1Google Scholar.
3 Helmholz, R, The Profession of Ecclesiastical Lawyers: an historical introduction (Cambridge, 2019), p 83CrossRefGoogle Scholar.
4 SI/2015/1568, rule 3(2)–(3) and Schedule 1.
5 Phillimore, R, The Ecclesiastical Law of the Church of England (second edition, London, 1895), vol II, p 1419Google Scholar.
6 Ecclesiastical Jurisdiction and Care of Churches Measure 2018, s 58(1) and (2).
7 Church Times, 19 July 2019.
8 Now replaced by the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, ss 71–72.
9 See letter of 3 February 1990 to the Bishop of Chichester from Chris Patten, Secretary of State for the Environment, and follow-up letter of 13 February 1990 from the Heritage Director, Department of the Environment, in the Church of England Archives, shortly to be moved to the new Lambeth Palace Library.
10 Spitalfields Open Space Ltd v Governing Body of Christ Church Primary School [2019] EACC 1; [2019] Fam 343.
11 (1821) 3 Phil 515, 527.
12 I owe that reference to a most interesting book, acquired in 2018 by Lambeth Palace Library, Wilford, L, The Law of Faculties (Carlisle, 1911)Google Scholar, the work of an erudite clergyman in the Diocese of Carlisle, written for the benefit of his fellow clergy.
13 Repeated in identical terms in his appendix to the Report on Simplification of the Faculty Process, 3 September 2012, <https://www.churchofengland.org/sites/default/files/2018-11/CCB_Report-on-Simplification-of-the-Faculty-Process_Appendix1_Jan-2012.pdf>, para 26, accessed 25 June 2020.
14 This is set out extensively in Cripps, Law Relating to Church and Clergy, pp 147–149.
15 See Spitalfields, para 112.
16 The background is set out in Newman, J, A Review of the Ecclesiastical Exemption from Listed Building Controls (London, 1997), pp 5–6Google Scholar.
17 DACs were first established on a voluntary basis and became statutory in 1938. In 1928 the Church Assembly formally took over the Central Council of Diocesan Advisory Committees, forerunner of the Council for the Care of Churches: see The Continuing Care of Churches and Cathedrals, Report of the Faculty Jurisdiction Commission (London, 1984), para 22Google Scholar.
18 Newman, Review of the Ecclesiastical Exemption, para 6.22.
19 Ibid.
20 Ibid, para 6.23.
21 Ibid, para 6.25.
22 DCMS, ‘The future of the ecclesiastical exemption’, September 2004.
23 Ibid, paras 19, 20, 23.
24 Ibid, paras 22–23.
25 Ibid, para 30.
26 Ibid.
27 DCMS, ‘The Ecclesiastical Exemption: the way forward’ (London, 2005), p 4, ‘Summary of decisions’. Later in the publication (p 9), it was declared that ‘The future of the Ecclesiastical Exemption will remain under review by DCMS, as recommended in the Newman Report.’
28 DCMS, ‘The operation of the ecclesiastical exemption and related planning matters for places of worship in England’, July 2010, para 7.
29 Ibid, paras 9–10.
30 Ibid, paras 34–35.
31 Ibid, annex A, para 2.
32 See now Ministry of Housing, Communities & Local Government, National Planning Policy Framework, February 2019, ch 16, ‘Conserving and enhancing the historic environment’.
33 Re St Alkmund, Duffield [2013] Fam 158 at para 87.
34 In re St Peter, Shipton Bellinger [2016] Fam 193 at paras 34–48.
35 Re All Saints, Hooton Pagnell [2017] ECC She 1 at para 20. A forceful defence of the faculty system was made by my predecessor, Sheila Cameron QC, in a letter published in the Church Times, 6 November 1998.
36 See the Faculty Jurisdiction (Amendment) Rules 2019, SI/2019/1184, Rule 5(e)–(g).
37 [2019] ECC Win 2.
38 [2002] Fam 1.
39 See Report of the Faculty Jurisdiction Commission, para 154. The Faculty Jurisdiction Commission was influenced by advice received from David Williams, a member of the Council on Tribunals, and from Peter Boydell QC (‘an experienced practitioner in the field of planning law and a distinguished diocesan chancellor’; para 152).
40 Ibid, para 209.
41 10 July 2013, unreported. Permission to appeal was granted by the Court of Arches, but not pursued.
42 ‘Report on Simplification of the faculty process’, September 2012, p 1, https://www.churchofengland.org/sites/default/files/2018-11/CCB_Report-on-Simplification-of-the-Faculty-Process_Sep-2012.pdf>, accessed 25 June 2020.
43 A fuller extract from his speech is contained in the Report by the Ecclesiastical Committee upon the Care of Churches and Ecclesiastical Jurisdiction Measure, para 6, printed 2 May 1991, HL Paper 49-II; HC 419.
44 Under the Inspection of Churches Measure 1955, as qualified by s 45 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 and s 7 of the imminent Care of Churches (Miscellaneous Provisions) Measure 2020.
45 In re St John the Baptist, Penshurst (9 March 2015) (unreported). The application to the Judicial Committee was numbered JCPC 2015/0049. It was refused on 16 July 2015. I am grateful to Chancellor Philip Petchey for supplying a copy of the petition to appeal, which he drafted for the Victorian Society.
46 Church Times, 14 February 2020. Absent is any reference to independent judgment.
47 In re St Peter, Shipton Bellinger, at para 48, echoing Sullivan LJ's words in East Northamptonshire DC v SCLG [2014] EWCA Civ 137 at para 23.
48 [2017] ECC Swk 1.
49 [2013] ECC She 3.
50 [2019] ECC Liv 1.
51 For example, St Peter and St Paul, Aston Rowant [2019] ECC Oxf 3; Re St Chad, Longdona [2019] ECC Lic 5. This line of reasoning merits a short article in itself.
52 [2017] ECC Pet 1.
53 See <https://www.victoriansociety.org.uk/news/grade-i-st-botolphs-to-keep-chancel-fixtures-following-heritage-battle>, accessed 25 June 2020.
54 Many unsatisfactory features of parish proposals are eliminated at the consultation stage, and thus never reach the chancellor. This is a partial explanation of the rarity of ultimate refusal of petitions.
55 The Bishops’ Conference Directory on Ecclesiastical Exemption, <https://familyofsites.bishopsconference.org.uk/plain/wp-content/uploads/sites/3/2018/11/Directory-on-the-Ecclesiastical-Exemption-from-Listed-Building-Control_Jan2019-.pdf>, accessed 25 June 2020.
56 This consists of three persons appointed by the officers of General Synod, of whom two must be past or present members of an LBAC other than the one from which the appeal emanates.
57 Under Standing Order 332 of the Methodist Council, the LBAC is appointed to provide expert knowledge of historic church buildings, in order, under Standing Order 982, to provide advice to the Connexional Conservation Officer on all applications for listed building works. It is not a decision-making body.
58 A key factor behind the establishment in 1980 of the Faculty Jurisdiction Commission was a private member's motion tabled for General Synod ‘That this Synod considers that the Faculty Jurisdiction of the Ecclesiastical Courts should be abolished’, which by 1979 had attracted 111 signatures: see Report of the Faculty Jurisdiction Commission, para 2. Since that time, the way in which the faculty system operates has been transformed, including enhanced consultation, Lists A and B, the online system, and enhanced training for chancellors and deputies.
59 Quite apart from the present firefighting over safeguarding and gender issues, a major centralisation of administrative functions is called for, together with a review of the whole system of diocesan fiefdoms.