An earlier post reviewed the recent judgment and penalty imposed by a Church Disciplinary Tribunal in Re Hawthorne [2015], (Decision; Penalty), which concerned a complaint brought under the Clergy Discipline Measure 2003 against a priest in relation to his retention of parochial fees for services at which he has officiated. As we noted, the regime under which the complaint arose has changed as a result of the Ecclesiastical Fees (Amendment) Measure 2011 [1], although even prior to this it was acknowledged in Parochial Fees GS 1703 (June 2008) that the practice was unlawful [2]; and in an earlier post, Church weddings, increased fees and “extras”, we indicated that the amending Measure addressed: the level and scope of the fees; what may be charged as “extras”; and the recipient of the fees.

In addition to the scale of fees for 2014, the Church published a comprehensive Guide to Church of England Parochial Fees (“the Guide”) covering the new provisions and responses to some Frequently Asked Questions, including retired clergy and self-supporting ministers, [Q8 and Q11]. The Guide and list of fees were last updated in January 2015, when the Legal Office of the National Church Institutions also issued further guidance, Crematorium funerals and parochial fees Guidance (“the Guidance”), in response to requests for clarification of the legal position on certain aspects of these issues. It is therefore important that these documents are read together, and with reference to the associated legislation.

Guide to Church of England Parochial Fees

The Guide uses the term “minister” throughout to refer to “the officiant”, although it states that this has a narrower meaning in the context of a service performed in a crematorium or unconsecrated cemetery, section 2 Church of England (Miscellaneous Provisions) Measure 1992. In addition to defining “minister” in subsection 2(6), subsection 2(3) of the Measure qualifies the conditions under which “a person licensed for the time being under [section 2 Extra-Parochial Ministry Measure 1967] to perform funeral services on premises forming part of or belonging to a university, college, school, hospital or public or charitable institution may perform a funeral service in any crematorium or cemetery.”

The Guide is therefore applicable to licensed deaconesses [3], readers and lay workers in addition to those in Holy Orders. The relevant paragraphs within the Guide are:

“DBF fees

6. The fees shown in the first column of the table of parochial fees [4] are payable to the Diocesan Board of Finance. Under transitional arrangements from January 2013, some incumbents continue to be able to retain the DBF fee. To be able to retain fees the incumbent must have satisfied three conditions. These are that:-

1/ he or she continues to be the incumbent of the benefice he or she held on 1 July 2011,

2/ he or she had not signed a Deed of Assignment of fees in favour of the DBF, and

3/ he or she gave written notice to the bishop of the diocese before 1 January 2012 that he or she wished to receive the DBF part of the fee while he or she remained in that post.

Funerals in cemeteries and at crematoria

37. Parochial Fees are legally payable to the DBF and PCC for funeral services if a clerk in holy orders, a deaconess, reader or licensed lay worker officiates at the service (except for a small number of incumbents on transitional arrangements – see paragraph 6, where the DBF fee is payable to the incumbent).

Privately owned cemeteries and crematoria

41(a) Fees specified in the table do not apply to privately owned cemeteries if they were established under private Acts of Parliament that make their own provision for fees. So, parochial fees are not payable for funeral and burial services in privately owned cemeteries. However, in practice, fees at the same rate as parochial fees may be payable in such privately owned cemeteries.

(b) All crematoria are subject the same legislation. Fees, payable to DBFs and PCCs, are payable in respect of services that take place at privately owned crematoria, as well as local authority crematoria where the service in question is taken by a clerk in holy orders or by a duly licensed deaconess, reader or lay worker.

Payment of funeral fees and expenses

39. The person in charge of the funeral arrangements is responsible for the payment of the fees for the service performed by a minister in a cemetery or crematorium. Where, by custom, a burial authority has arranged with local clergy and funeral directors to collect and pay the fee, it may do so.

40. Statutory parochial fees are due on the performance of the office. Clergy cannot refuse to conduct a marriage service, or deny burial, on account of non-payment of the fee, or any advance payment in respect of the fee. However, if the service is provided, and the fee is not paid, it is recoverable under law.”

Guidance: Crematorium funerals and parochial fees

The Guidance indicates that the CofE Legal Office was requested to “clarify the legal position in relation to crematorium funerals and the payment to, and receipt of fees by, the clergy. In particular [it was] asked to advise on the position of clergy who do not hold office (whether because they are retired or otherwise) and who purport to conduct funerals on a freelance basis.” The Guidance therefore does not supersede the earlier Guide, but needs to be read in conjunction with it.

The Guidance is addressed to “clerks in Holy Orders”/”the clergy” and apart from a footnote, there is no there is no reference to licensed deaconess, readers or lay workers. Nevertheless, paragraph 37 of the Guide to Church of England Parochial Fees clarifies that in relation to the non-retention of fees, the same requirements apply whether a clerk in holy orders, a deaconess, reader or licensed lay worker officiates at a funeral in a cemetery or a crematorium. The difference between these two groups lies in the requirement that clerks in Holy Orders satisfy the provisions of the Clerical Disabilities Act 1870 before they cease to be subject to ecclesiastical law.

This is summarized in paragraph 9 of the Guidance:

“There is therefore no legal scope for the exercise of an independent or freelance ministry by any clergy of the Church of England. An Anglican clergyman/woman cannot lawfully claim to be taking a funeral in a private, unofficial capacity, and accept payment for his or her services on that basis, rather than as a clerk in Holy Orders.

It furthermore states that the only way in which a clerk in Holy Orders can render him- or herself free from the provisions of the Ecclesiastical Fees Measure 1986 and of the obligations imposed by the Canons, is through a deed of relinquishment in accordance with the provisions of the Clerical Disabilities Act 1870, below.

Clerical Disabilities Act 1870

Re Hawthorne demonstrated the importance of the Clerical Disabilities Act 1870 through the Tribunal’s rebuttal of a challenge to its jurisdiction over a priest who had joined the Ordinariate. The civil and ecclesiastical consequences resulting from a priest’s formal resignation through a deed of relinquishment cannot be effective until the deed has been recorded in the registry of the dioceses; this may not occur until the expiration of six months after an office copy of the inrolment of a deed of relinquishment has been delivered to the bishop: see s 3 and 4 of the 1870 Act.

The consequences of the execution of the deed are:

“(1) He shall be incapable of officiating or acting in any manner as a minister of the Church of England, and of taking or holding any preferment therein, and shall cease to enjoy all rights, privileges, advantages, and exemptions attached to the office of minister in the Church of England:

(2) Every licence, office, and place held by him for which it is by law an indispensable qualification that the holder thereof should be a minister of the Church of England shall be ipso facto determined and void:

(3) He shall be by virtue of this Act discharged and free from all disabilities, disqualifications, restraints, and prohibitions to which … he would, by force of any of the enactments mentioned in the first schedule to this Act or of any other law, have been subject as a person who had been admitted to the office of minister in the Church of England; and from all jurisdiction, penalties, censures, and proceedings to which … he would or might, under any of the same enactments or any other law, have been amenable or liable in consequence of his having been so admitted and of any act or thing done or omitted by him after such admission.”

However, section 8 of the Act states:

“8 Saving for pecuniary liabilities.

Nothing in this Act shall relieve any person or his estate from any liability in respect of dilapidations or from any debt or other pecuniary liability incurred or accrued before or after his execution of a deed of relinquishment under this Act, and the same may be enforced and recovered as if this Act had not been passed.”

On the basis that “other pecuniary liabilities” includes parochial fees due to the DFB or PCC, the Church retains the ability to recover these through the civil courts even after a deed of relinquishment has been recorded.

Summary

From the CofE Guide, Guidance and the judicial consideration in Re Hawthorne, the position of CofE clergy, licensed deaconesses, readers and lay workers is clear:

• all clerks in holy orders are, by virtue of that legal status, bound by the Canons of the Church of England;
  • Canon B 1.2 limits the forms of service that may be used by the clergy to those which are authorised or allowed by Canon;
  • Canon C 8 provides that clergy may officiate in any place only if they have the authority of the bishop of the diocese to do so [5];
• it is unlawful for a member of the clergy to officiate in any parish without the permission of the incumbent [6] except where authorised to do so under specific statutory provisions [7];
• clerks in Holy Orders must satisfy the provisions of the Clerical Disabilities Act 1870 before they cease to be subject to ecclesiastical law;
• dishonest retention of fees payable under the Parochial Fees Orders for services at which a clerk in Holy Orders has officiated fall within section 8(1)(d) of the CDM; in addition, associated acts or omissions may amount to neglect in the performance of the duties of the said office, contrary to section 8(2)(c) of the CDM;
• There is no legal scope for the exercise of an independent or freelance ministry by any cleric of the Church of England. An Anglican cleric cannot lawfully claim to be taking a funeral in a private, unofficial capacity and accept payment for his or her services on that basis, rather than as a clerk in holy orders;
• a deaconess, reader or licensed lay worker may only officiate according to the conditions of his or her licence and are subject to the same provisions regarding the retention of parochial fees;
• unless the diocesan board of finance has expressly agreed that retired or other clergy who undertake occasional duties may keep the fee that is payable to the board (or part of the fee), it is not lawful for a member of the clergy to retain any fee which is payable to the diocesan board of finance under the 1986 Measure. To do so in the absence of an agreement with the board would amount to the appropriation of property belonging to another for the purposes of the Theft Act 1968.

Comment

A potential weakness in the audit trail of parochial fees is highlighted by paragraph 39 of the Guide which identifies the person in charge of the funeral arrangements (or the burial authority) as being responsible for the payment of the fees for the service performed by a minister in a cemetery or crematorium. Such an individual or organization is pivotal in any funeral but has no specific legal obligations toward the PCC or DFB to whom parochial fees must be paid. Consequently, action for non-payment of parochial fees by such a person must be taken through the civil courts.

Within the Church, measures are in place for the recording and assessing parochial fees: the adjudication in Re Wray [2011] indicates that the Respondent admitted and accepted that all his three types of returns[8] were inaccurate and did not contain a true and accurate reflection of the fees he had in fact received. In this case, potential irregularities were identified by the Complainant shortly after taking up his post as Archdeacon. In addition, all such fees retained by a priest are subject to income tax, and in relation to Re Hawthorne [2015], though not within the judgement, Dr Hawthorne is reported to have claimed that the appropriate payments were made to HMRC.

A further weakness in the audit trail was demonstrated in Re Hawthorne, where of the 260 cremation services conducted by Dr Hawthorne over the period November 2010 to April 2012, in only 33 of these was the deceased a parishioner or on the electoral roll of the benefice of the church in which he was assistant curate.

In addition to these legal issues, there are the underlying issues of the Church’s reliance upon retired clergy to take a significant number of these services and the pastoral care associated with them. With regard to the former, the Guidance clarifies that retired or other clergy who undertake occasional duties may come to an agreement with the DBF to keep the fee that is payable to it.

[1] Although it came into force in 2011, the Measure did not become effective until 1 January 2013 under the Parochial Fees and Scheduled Matters Amending Order 2012.

[2] A supplementary report from the Deployment, Remuneration and Conditions of Service Committee, paragraph 8, page 9, footnote 17, Parochial Fees GS 1703,

[3] Canon D 2: Of admission to the order of deaconesses states: “2A. No woman shall be admitted to the order of deaconesses unless she was accepted for training for admission to that order before the commencement of the Deacons (Ordination of Women) Measure 1986”; the commencement date of the 1996 Measure was 16 February 1987.

[4] This link connects with the Table of Fees for 2015.

[5] an incumbent is permitted to invite another member of the clergy to officiate in his or her church on a limited occasional basis.

[6] Nesbitt v Wallace [1901] P 354.

[7] Extra-Parochial Ministry Measure 1967 and section 2 of the Church of England (Miscellaneous Provisions) Measure 1992.

[8] Monthly Fees Remittance Advice returnable by the stipendiary clergy to the DBF showing the breakdown of assigned fees; the “Statistics for Mission” form submitted annually by each parish to the diocesan office for publication by the archbishops Council; and annual returns to the Church Commissioners.