Removing trustees: when charity and ecclesiastical laws collide?

The Cabinet Office has concluded a consultation on a number of proposals to amend and extend the powers of the Charity Commission for England and Wales with regard to disqualifying trustees, compliance and closing down charities.

Under the terms of the Charities (Exception from Registration) (Amendment) Regulations 1996, as amended, a wide range of Churches and other charities wholly or mainly for public religious worship that have an income of £100,000 or less is excepted from registration with the Commission: the Baptist churches, the Church in Wales, the Church of England, Congregational churches, member congregations of the Fellowship of Independent Evangelical Churches, the Methodist Church, the Presbyterian Church in Wales, the Quakers, the Unitarians, the Union of Welsh Independents and the United Reformed Church. But those provisions except them from registration, not from the need to comply with charity law; and (so far as one can determine) the proposals in the consultation would apply equally to excepted as to registered charities.

Each of the roughly 16,000 Church of England parishes is a charity of which the members of the parochial church council are the trustees: for a useful summary of their responsibilities, see the Legal Advisory Commission’s note on Parochial Church Councils: Legal Position of Members. About 10,000 of them are still excepted from registration because their annual income does not exceed £100,000. Charity trustees in other Churches are in a similar position as trustees; but because the law relating to the Church of England is part of the general law, C of E parishes have a particular legal status not shared by other religious charities.

The law governing PCCs is set out in the Church Representation Rules 2011 (CRR) made in pursuance of the Synodical Government Measure 1969; and the potential interaction between the proposals in the consultation document and church law is exceedingly complex. What the document appears to propose is, inter alia, to apply HMRC’s fit and proper persons test to charity trustees for wider purposes than its present one of claiming tax reliefs. Proposal 5 of the consultation – Preventing disqualified trustees acting in another position of power in a charity – is that “a person who is disqualified from being a trustee should also be prevented from acting in other positions of power in a charity”.

Which raises the question as to what would happen if, for example, an incumbent with freehold in the Church of England were disqualified as a trustee of an unrelated charity. That person would certainly be in a “position of power” in relation to the PCC because Rule 8 of the CRR assumes that the incumbent will chair the PCC. So would he or she then have to be removed as incumbent? And, if so, how could that be done? – by the Church itself under the Clergy Discipline Measure 2003? The Charity Commission could not, presumably, do it by fiat. And what if, after investigation, it was decided by the Church that the incumbent in question had not committed any misconduct warranting removal? It cannot, presumably, be intended that the Commission should be able to direct a PCC to, in effect, bar its incumbent from attending meetings.

There appears to be a potential conflict here between the Cabinet Office proposals and CRR Rule 8. Annex II of the CRR provides in paragraph 1(c) that

“During the vacancy of the benefice or when the chairman is incapacitated by absence or illness or any other cause or when the minister invites him to do so the vice-chairman of the council shall act as chairman and have all the powers vested in the chairman” [our italics].

But that would hardly provide a satisfactory medium-term solution and it was surely not the intention behind that paragraph.

Obviously the scenario set out above is an extreme case; but this particular proposal could possibly have unforeseen consequences in relation to the ecclesiastical law of the Church of England and might possibly raise canonical issues for other Churches as well.

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