In the recent discussions about disestablishing the Church of England and whether or not the United Kingdom is a “Christian country” any longer, the linked issue of disendowment has at least been hinted at. Proponents point out that when the Church of Ireland was disestablished by the Irish Church Act 1869 it was totally disendowed. Something similar happened when the Anglican dioceses in Wales were disestablished by the Welsh Church Act 1914. What became the Church in Wales in 1921 lost its endowments predating 1662 in favour of the University of Wales and secular local authorities, though it was allowed to retain those endowments settled on it after that date. [For further detail see Philip Jones: Disestablishment, Disendowment and Dismemberment.]

So if the Church of England were disestablished, runs the argument, why should it not also be disendowed at the same time?

Quite apart from the fact that to disendow a disestablished Church of England would require a degree of political will which (in my view, at any rate) does not currently exist, a possible answer to the question might lie in the dates.

Article 1 Protocol 1 ECHR (“A1P1”) provides as follows:

“(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

Article 17 (Right to property) of the EU Charter of Fundamental Rights is, if anything, even more prescriptive:

“1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest”.

There is a useful post about A1P1 on UKHRB that draws attention to the decision of the Grand Chamber in Sporrong and Lönnroth v Sweden 7151/75 [1982] ECHR 5, as follows:

“61 [… The Article] comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph”.

Applied to the endowments of the Church of England, presumably it would be impossible to argue that the purpose of disendowment was “to secure the payment of taxes or other contributions or penalties”, since the fact that charities (religious charities included) enjoy a range of tax exemptions is provided for by domestic legislation. However, various points arise:

1. Endowments are property.
2. Would disendowment, even if “subject to the conditions provided for by law”, be regarded by the ECtHR as “in the public interest”?
3. Would disendowment be in accordance with “the general principles of international law”?
4. If, in addition to A1P1, Article 17 of the EU Charter were to apply, what would constitute “fair compensation being paid in good time” – and wouldn’t paying it merely render the exercise pointless anyway?

Furthermore, it is not clear that there is a body called “The Church of England” to disendow. The Church’s property is held by a multiplicity of charitable trusts, ranging from the Church Commissioners for England (which is both a  statutory body under the Church Commissioners Measure 1947 and registered charity number 1140097) down to individual parochial church councils, each of which is a charity in its own right. When the Anglican dioceses in Wales were disestablished charity law was still based on the Statute of Charitable Uses 1601 and subsequent case-law, notably Income Tax Special Purpose Commissioners v Pemsel [1891] AC 531. Since then, however, charity law has been modernised and consolidated, most recently in the Charities Act 2011.

So in the hypothetical circumstance of a future UK Government deciding completely to disendow the C of E, in the event of a challenge the ECtHR might possibly take the view that expropriation of private property on such a scale exceeded the UK’s margin of appreciation.

Cases before the ECtHR are extremely difficult to predict and hypothetical cases even more so: however, there are indications in the case-law that the Court tends to look with disfavour on expropriation. For example:

• In Catholic Archdiocese of Alba Iulia v Romania [2012] ECHR 33003/03 the Court held that the failure of the Romanian Government to return to the Archdiocese property – an Astronomical Observatory and the historic Batthyaneum Library – confiscated by the Communist regime in 1947 was without legitimate justification and violated the rights of the Archdiocese under A1P1.

• In Fener Rum Patrikliği (Ecumenical Patriarchate) v Turkey [2008] ECHR 14340/05 and [2010] ECHR 14340/05 it was held that the Turkish authorities had violated A1P1 by depriving the Ecumenical Patriarchate of a boys’ orphanage belonging to it without appropriate compensation.

• In Fener Rum Erkek Lisesi Vakfi v Turkey [2007] ECHR 34478/97 an order by the Turkish courts setting aside a title acquired through gifts of property to an Orthodox Church foundation in 1952 and 1958, on the grounds that its constitution did not state explicitly that it had capacity to acquire real property, was held to have violated A1P1. 
  

Whether it might be possible to construct some kind of partial disendowment that would satisfy the provisions of A1P1 is, of course, another question – and an even more hypothetical one. But my overall conclusion is that accession to the Convention has produced a discontinuity between the situation at the time of the Irish and Welsh disestablishments and the present – and it is no longer possible simply to argue from the one to the other.

Frank Cranmer

(And finally … I’d never come across the word “enounce” before: I had to look it up to check that it wasn’t simply an example of Eurosprach. Which all goes to prove that you’re never too old to learn something new…)