What is a “church” in English law?

In this guest post, Simon Hunter, of 13 Old Square Chambers, muses on the interesting question of what is a “church” for the purposes of English law?

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Introduction

In recent weeks and months there has been much soul-searching about the future of the Anglican Communion. The Primates’ communiqué may well be destined to please no-one – too liberal for the conservatives and too conservative for the liberals – and it may be that holding the Communion together is a Sisyphean task.

However, the discussions got me thinking about the nature of the Communion, and of communion. The Anglican Communion, quoting the 1930 Lambeth Conference, describes itself on its website as a “fellowship, within the one holy catholic and apostolic church, of those duly constituted dioceses, provinces or regional churches in communion with the see of Canterbury.” This quotation itself raises an interesting question about what in this context and more broadly it means to be or to say “a church”.

As it happens, this was already in my mind, as the answer to the question “what is a church?” was important to some advice that I recently gave to a client. His question, “how do I set up a church?”, in fact related to his non-mainstream faith which also happens to use the word, but the answer is much the same whatever faith or denomination one looks at.

Definitions

I would suggest that we use the word “church” with three different meanings:

  1. the physical building in which worship takes place; the Parish Church, e.g.;
  2. “the quasi-corporate institution which carries on the religious work of the denomination whose name it bears”: the Church of England, e.g.; and
  3. “the aggregate of the individual members” of the denomination or faith in question; the congregation, e.g.

The two quotations have appeared in Halsbury’s Laws of England at least since 1922, when they were quoted by Romer J in Re Barnes [1930] 2 Ch 80n.[1]

My Pocket[2] Oxford Dictionary and Thesaurus agrees, citing three (admittedly Christiano-centric) meanings corresponding precisely to the three set out above: “Church: n. 1. a building for public Christian worship. 2. (Church) a particular Christian organisation. 3. (the Church) Christians as a whole.”

The first of these meanings seems to me to call for little by way of legal comment. A building might with some linguistic justification be called a church if it is used for religious activity of some sort. Then again it might be used for such activity and called something different: a chapel, a mosque, a temple, e.g. Therefore this is a cornflakes definition[3]: all churches must be places of worship, but not all places of worship need to be churches. I do, however, note in passing at this stage the possibility that such a building might be registered under the Places of Worship Registration Act 1855, bringing consequential effects in both marriage and tax law.

It is probably this first definition that most people mean most of the time when they say ‘church’. However, there appears to be no legal effect dependant on whether a building is called a church, or a chapel, or anything else. The law in this area, quite rightly, looks to substance and not form.

Norman Doe, in his fascinating book Christian Law (Cambridge University Press, 2013) says that:

“what emerges from a comparison of these instruments [i.e. the regulatory instruments of the various denominations explored in the book] is that a church is a community of Christians in a particular geographical area with defined objects and a distinct membership, institutional organisation and autonomous polity; moreover a church may be, or may be a part of, a local, regional, national or international ecclesial community and at the same time claim its place in the church universal” (pp11-12).

This definition encompasses the second and third of my above-mentioned definitions, and expands on them. It also emphasises that they are connected. This is important. The three definitions I have given are not alternatives: the existence of the one implies, in almost every conceivable case, the existence of both of the others.

It may be, in fact, that which of the three definitions is seen to the fore in any given situation may tell us something interesting about the body being studied. For instance, a body which emphasises the corporate nature of the denomination is likely, I would suggest, to be more centralised, perhaps more hierarchical, than one which emphasises the aggregation of members. One might compare Canon 204§2 of the Codex Iuris Canonici (quoted by Doe at p12):

“This Church, established and ordered in this world as a society, subsists in the catholic Church, governed by the successor of Peter and the Bishops in communion with him”

with Article 19 of the Articles of Religion of the Church of England:

“The visible Church of Christ is a congregation of faithful men, in which the pure Word of God is preached, and the Sacraments duly ministered according to Christ’s ordinance in all those things that of necessity are requisite to the same”,

and with the Baptist Union of South Africa’s model definition of a local church (quote by Doe at p19 fn51)

“a community of believers in a particular place where the Word of God is preached and the ordinances of Believers’ Baptism and the Lord’s Supper are observed. It is fully autonomous and remains so notwithstanding responsibilities it may accept by voluntary association.”

Churches in English law

The quasi-corporate institution has been described as “the operative institution which ministers religion and gives spiritual edification to its members”: see Re Barnes at 81. What might such an institution be, in legal terms? It seems to me that there are four main structures that it might adopt. It might simply have no formal structure at all, a group of friends meeting to share their faith. It might be a formal unincorporated association: a society or club. It might be an incorporated association such as a company. Finally, it might be a charity. There is an almost infinite number of possible variations, many of which overlap these boundaries.[4]

If the primary raison d’être of the association is to own the property (the church…) in which the community worships, a charitable trust might be right. Where the faith in question is not recognised as a religion such that its promotion would not be “for the advancement of religion” (such as was, until recently, the position with Scientology), perhaps a company limited by guarantee or a voluntary association would be better. If the practice of the faith requires some practice which is illegal under English law, such as the taking of prohibited substances, then having no formal structure may well be the only option. There are almost as many answers as there are religious groups.

It is all too easy, particularly for commentators and the media (for whom it can provide a useful paper-selling and often sensationalist narrative), to assume that the quasi-corporate institutions that we call Churches – the CofE, the Roman Catholic Church, the Russian Orthodox Church, etc – are monolithic, single entities. They need not be, of course, although some are. In the case of the Anglican Communion, it has historically been about as polylithic as they come.

So does this meaning of the word have any use to lawyers? I would argue that it does, provided we use it precisely. To say ‘the Church of England’ is to interpose the whole law on the structures and constitution of that body. Ditto ‘the Roman Catholic Church’. The label is a convenient shorthand for that body of law and faith, but it is only ever a shorthand.

Third, the aggregation of members. Here, I think, we can again leave the law (and, more importantly perhaps, the lawyers) behind for a moment. Maybe it is a peculiarly Christian perspective, I wish someone would tell me, but this seems to me to be the very nub of the answer. Without an aggregation of individuals there is no need for institutions or buildings, certainly no need for lawyers to argue about what it all means.

Conclusion

So, what is a church? I hope that it is now clear that the lawyer’s only answer to the question must be: “that all depends on the context.” However, it seems to me that, whatever the faith or denomination concerned, and whomsoever the “thy” concerned might be, the words of the golden-tongued Patriarch of Constantinople St John Chrysostom might not be a bad place to start: “…when two or three are gathered together in thy Name thou wilt grant their requests…

Simon Hunter

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[1] It is in paragraph 2 of the current volume on Ecclesiastical Law (2013). In fact, I have altered the second a bit, as will be seen, and switched them around to fit my narrative. The paragraph as printed reads: “‘Church’, when used in relation to a religious body, has two distinct meanings: it may mean either the aggregate of the individual members of the church or it may mean the corporate institution which carries on the religious work of the denomination whose name it bears.” The section “the aggregate…of the church” seems to me, pace the learned authors of the volume and the learned Judge (who described it as “good sense and good law”), to be circular: the church is the aggregate of the members of the church. This simply begs the question.

[2] Sadly a misnomer: it is 12 x 19 x 5cm, which is certainly bigger than my pockets. Still an excellent reference work, though.

[3] All cornflakes are breakfast cereals. Not all breakfast cereals are cornflakes.

[4] I make no attempt to say into which of these categories the many parts and structures of the Church of England may fit. To a great extent it is, as the established church (a term I use without trying to define its second word), sui generis in any event. Lord Hobhouse said that “the Church of England is not itself a legal entity”: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Walbank [2004] 1 AC 546 at [84].

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Cite this article as Simon Hunter, “What is a ‘church’ in English law?” in Law & Religion UK, 19 January 2016: https://www.lawandreligionuk.com/2016/01/19/what-is-a-church-in-english-law/.

4 thoughts on “What is a “church” in English law?

  1. I’ve had a couple of similar queries in the course of the day-job. My response to both was, “if you want to set up a Church (and if you feel you really must do so, given the bewildering array already on offer) then find some like-minded people and just do it“. I suspect that there is some kind of urban myth out there that, in order to be a “church”, the institution in question needs to take some kind of legal step, such as registration, in order to validate its existence.

    My understanding of the law as it stands at present is that we still have a “freedom-based” system rather than a “rights-based” system – though we’re gradually moving towards the latter. But even so, we haven’t introduced a registration system yet; and “every citizen has a right to do what he likes, unless restrained by the common law … or by statute”: per Lord Donaldson MR in Attorney General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 at 178.

    That said, however, there is at least one potential catch. If someone sets up a trust exclusively for purposes that could be regarded as for the advancement of religion, then that person will have – unwittingly – set up a charitable trust that, in England and Wales, may be subject to registration with the Charity Commission and in any event will have to comply with charity law. The obvious counter is to make very sure that the objects of any such new trust are not exclusively charitable – but the person setting it up might not be aware of the trap in the first place.

    • I agree with you Frank. Some high profile churches have attempted to do just that to avoid Charity Commission regulation. One potential fly in the ointment might be if the Charity Commission tries to agree that despite not having charitable purposes the church is in substance charitable and then uses its scheme making powers to impose charitable objects. That happened in an inquiry case called The Miriam Appeal. It is cited in my book “The Law of Charitable Status: Maintenance and Removal”.

  2. Pingback: Law and religion round-up – 24th January | Law & Religion UK

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