In mid-January 2015 the Church of England issued further guidance on Crematorium funerals and parochial fees (“the Guidance”) to supplement that published earlier in the month: the comprehensive Guide to Church of England Parochial Fees (“the Guide”) and the associated Frequently Asked Questions covering the recently-enacted provisions within the Ecclesiastical Fees (Amendment) Measure 2011.

The Guidance on crematorium funerals was produced, in part a response to Re Hawthorne [2015], (Decision; Penalty), and associated requests for clarification of the legal position on retired clergy and self-supporting ministers. Following similar requests from hospital chaplains, on 24 February the Remuneration and Conditions of Service Committee (RACSC), of the Archbishops’ Council circulated Guidance for Church of England Hospital Chaplains, Incumbents, Diocesan Boards of Finance, and Hospital Trusts in relation to Funeral Services and Church of England Parochial Fees, (“the new Guidance”), to the chaplaincy network

This was received with a degree of concern by hospital chaplains, and was followed: on 6 March by a more widely circulated letter of reassurance from the Bishop of Manchester, the chair of the RACSC; and on 9 March with the publication of twenty-three Frequently Asked Questions which further explained the guidance, its basis and application.

Ordained chaplains and the law

Underpinning these considerations, but not stated implicitly in the new Guidance, is the position of hospital (and other) chaplains in ecclesiastical and secular law, which differs from that of parochial clergy. Furthermore, the common law duties relating to burial, which centre on the local parish church and its incumbent, are not aligned with the pastoral duties of hospital chaplains, which fall outwith the CofE parish system.

The recently-circulated FAQs explain:

“Chaplaincy, across numerous sectors, focuses ministry and mission through non-geographical sectors of life. The parish ministry and chaplaincy are complementary. However, the great majority of occasional offices, and hence the payment of the majority of fees, take place through the parochial structure and the law concerning the offices and fees reflects this. As it would be unwieldy to operate parallel legal and financial structures which could accommodate every mode of ministry within the Church of England, for the purpose of occasional offices and fees, the law reflects the parish system and the present guidance points to pragmatic ways for the ministry of chaplains to operate within this structure,” [Q6].

Although the majority of parochial clergy in the Church of England hold their ecclesiastical offices under Common Tenure, most chaplains are subject to different arrangements. This is a consequence of Regulation 2(3) of the Ecclesiastical Offices (Terms of Service) Regulations 2009,

“Where an office holder holds an office in pursuance of a contract of employment, these Regulations shall not apply to the office holder in respect of that office, without prejudice to the application of the Regulations in respect of any other office held by that office holder.”

The document Ordained Chaplains and Common Tenure states, [emphasis added]:

“[t]he position of chaplain to a person or institution is not recognised in law as an ecclesiastical office. Unlike parochial ministry, the duties and parameters of a chaplaincy are not defined in statute or in the Canons, but are governed primarily by the requirements of the person or body that the chaplain serves and/or the person or body that appointed him or her, if different.

Even in situations where there is at present no written contract, it is very likely that a Court, if asked to determine the matter, would conclude that chaplains are employees in law. Their contracts of employment, written or oral, sit alongside the licence from the bishop which authorises their ministry under Canon C 8 [1]“.

Thus, CofE parochial clergy are not considered as employees under secular law, but hold ecclesiastical office under church law; conversely, chaplains are considered as employees under secular law, buf their position is not recognized under ecclesiastical law.[2] However, as a consequence of their status as an ordained priest or deacon, chaplains fall within other ecclesiastical provisions such as the Clergy Discipline Measure 2003 which applies to all clergy however their ministry is authorised, and continues to apply when they are no longer active in their ministry, here.

The bishop of a diocese confers authority on a minister to exercise his or her ministry either by institution to a benefice, or by admission to serve within the diocese by licence under his hand and seal, or by giving written permission to officiate (PtO) within it. To assist in determining what form of authorisation is appropriate for someone’s particular ministry, the RACSC has produced Deployment of Clergy with Permission to Officiate, which explains the legal implications of issuing clergy licences and permission to officiate.

The new Guidance

The aim of the new Guidance is:

• to reflect the legal position in respect of chaplains taking Church of England funeral services;
• to indicate when it is necessary for the chaplain to obtain the consent of the deceased’s incumbent;
• to demonstrate how arrangements can be made between the hospital chaplain, hospital trust, incumbent, and Diocesan Board of Finance (DBF) to enable chaplains to take funerals with the consent of the deceased person’s incumbent when pastoral reasons make this appropriate;
• to explain who, in these circumstances, is legally entitled to receive parochial fees.

This essentially reiterates the existing legislation and outlines:

• the circumstances in which a hospital chaplain, licensed under the Extra Parochial Ministry Measure 1967 can officiate at funeral services;
• where the consent of another minister is required; and
• circumstances in which parochial fees are due.

With regard to this last point, it is clear from the flowchart at the end of the new Guidance, and by inference from the Parochial Fees and Scheduled Matters Amending Order 2014, that parochial fees do not apply in relation to funeral and other services conducted on the premises of the institution to which the chaplains in licensed, although subsequent services at crematoria and cemeteries do attract parochial fees.

The consent of other clergy is not required for services conducted on the premises of the institution to which the chaplain is licensed, or in any crematorium or cemetery if the deceased person, immediately before he or she died, was resident in, or was employed by, or enrolled as a student at, the institution. When invited to take a funeral service for someone whose funeral he or she is not licensed to take, the chaplain should seek to establish the identity of the minister who has primary responsibility for the funeral and burial of that person and seek either an invitation to act on the minister’s behalf or the minister’s consent as described. For persons who die in hospital that are not resident in, or on the electoral roll of, any parish elsewhere, the minister of the parish in which the hospital is situated is taken to have primary responsibility for the funeral and burial.

For those circumstances in which parochial fees apply, the new Guidance stresses that these are not contractual arrangements but are defined by statute in the Ecclesiastical Fees Measure 1986, as amended. Mirroring the arrangements for retired clergy and self-supporting ministers discussed earlier, they are not payable to hospital chaplains or to hospital trusts in respect of services, but only to the bodies prescribed in a Fees Order. Depending on the fee, this could be the Diocesan Board of Finance, the Parochial Church Council, or both.

Comment

The new Guidance does not change the position regarding the entitlement to parochial fees but describes the basic legislative framework within which to work. The FAQs cover some of the practical issues in more detail. In 2012, the Church of England’s national communications team produced a leaflet explaining the new arrangements for parochial fees under the Ecclesiastical Fees (Amendment) Measure 2011. This was incorporated in the information provided on diocesan websites such as Portsmouth and elsewhere, and includes the statement:

“Chaplains have never been entitled to receive parochial fees. Where a chaplain officiates at a service where parochial fees apply, the fees belong to the DBF and PCC in the same way as they do when the parochial clergy officiate. However, where chaplains take a service they may receive a payment if the DBF has decided that they should.”

There is an underlying assumption that the chaplain’s terms and conditions agreed with his/her secular employer are compatible with those of the licence/permission to officiate issued by the bishop in relation to what he or she is permitted to undertake as a priest, and the remuneration, if any, that has been agreed by the Diocesan Board of Finance. However, the FAQ document states “We are not aware of provisions in chaplains’ contracts of employment that are in conflict with the legal position explained in the guidance”, (Q11).

Other aspects clarified by the FAQs include:

• Q15 the meaning of “resident” in the 1992 measure, (dependent upon the facts of the situation);
• Q16, “contract funerals”, i.e. those which a hospital is required by law to arrange for people who die in hospital if no one else is prepared to make the arrangements, many of which are for babies, (for those over 16 years old, fee waived if there is no-one to pay them);
• Q17, funerals of babies and still-born and non-viable foetuses, (as with other funerals, but if the chaplain has a standing arrangement with the relevant incumbent, no need to go to the incumbent on a case-by-case basis; no parochial fees are payable);
• Q18, data protection issues, (law does not apply to the deceased).

With regard to making contact with the resident incumbent, Q13, the FAQs as circulated does not appear to follow Re Hawthorne [2015] at para 38, though this discrepancy will no doubt be resolved in a later version.

David Pocklington

[1] Also of relevance is Canon B 41 Of divine service in private chapels.

[2] However, it is not always this clear cut: the CofE Common Tenure FAQ’s lists those falling outside common tenure, and in Q3 states “those whose ministry is the subject of a contract of employment (for example, chaplains and diocesan employees) unless the bishop’s licence authorises them to exercise a wider ministry in the diocese (in which case common tenure may apply to that wider ministry)”.