Civil Society reports that Paul Burstow, Lib Dem MP for Sutton and Cheam, has asked the Vatican to intervene to stop a Roman Catholic charity, the Congregation of the Daughters of the Cross of Liège (Registration No. 1068661), from selling St Anthony’s Private Hospital in Sutton to a private company. The charity’s trustees – all of whom are members of the Congregation – propose to sell the hospital as part of their strategy to reduce the scope of the charity’s activities because the Daughters of the Cross are ageing and need to cut down on their commitments.
St Anthony’s Private Hospital shares its site with St Raphael’s Hospice, also owned by the charity; and there is concern that the closure of the hospital might call into question the future of the hospice because the hospice relies on the hospital for what are described as “back-office services”, the annual cost of which is an estimated £1M. The Congregation has given assurances that the hospice will remain under the charity’s ownership until it has achieved financial sustainability and says that the Vatican is already aware of its plans and has not raised any concerns.
Nevertheless, Burstow has collected almost 6,000 signatures on a petition calling on the Vatican to intervene in the case. He presented it to the Commons earlier in the week and told the House that he and the chair of the hospice advisory committee planned to meet Archbishop Mennini, the Apostolic Nuncio, to “urge him to use his good offices to secure a resolution to the dispute between the staff and volunteers and the charity”. He has also written to the Charity Commission, on whose behalf a spokeswoman said that the Commission is aware of the proposed sale and the concerns surrounding it, but “we have seen no evidence to suggest mismanagement at the charity or that the trustees are not acting in the best interests of the charity. As such, we will not be taking any further action”.
The rights and wrongs of the situation in Sutton are emphatically not our concern. What is interesting, however, is Paul Burstow’s appeal to the Vatican to intervene. Under the terms of Canon 331 of the Codex luris Canonici 1983 the Pontiff is
“… the head of the College of Bishops, the Vicar of Christ, and the Pastor of the universal Church here on earth. Consequently, by virtue of his office, he has supreme, full, immediate and universal ordinary power in the Church, [qui ideo vi muneris sui suprema, plena, immediate et universali in Ecclesia gaudet ordinaria potestate] and he can always freely exercise this power”.
Therefore: there is no higher authority than the Pontiff, his authority is complete, it is exercised without any intermediary, it is exercised over the whole Church and it belongs to the office. Moreover, Canon 333 §3 provides that “[t]here is neither appeal nor recourse against a judgment or a decree of the Roman Pontiff”.
So that’s the relevant canon law. But what if the Vatican did intervene?
Under the law of charitable trusts, the trustees are under a duty to act in the interests of the charity – and not otherwise. The Charity Commission puts it like this: “When you make decisions about your charity, you must:
- act within your powers
- act in good faith, and only in the interests of your charity
- make sure you are sufficiently informed, taking any advice you need take account of all relevant factors
- ignore any irrelevant factors
- manage conflicts of interest
- make decisions that are within the range of decisions that a reasonable trustee body could make in the circumstances”.
So if the Vatican ordered the trustees not to sell the hospital but the trustees were of the considered view that selling the hospital was in the best interests of the charity, what should they do? The answer in charity law would surely be to sell the hospital. The possibility of religious sanctions against the individual trustees would not be a relevant consideration in secular law: the duty to act solely in the interests of the charity is not a choice but a legal obligation.
This is, perhaps, an extreme case; but trustees of all religious charities need constantly to bear in mind that they are there to act in the interests of the trust and in accordance with its governing document, whatever pressures may be put on them by their co-religionists to do the “religious” thing instead.