What are the implications of being a Church-controlled charity in the Church of England and the Roman Catholic Church?

Guest post by Robert Meakin, Partner at Stone King LLP, Solicitors

Introduction

What follows looks at the charitable structures in the Church of England and the Roman Catholic Churches and the effect of control exercised by those Churches over their charities. It focuses on dioceses, parishes, schools and religious orders. There has not been any previous research or commentary on this subject but there are some serious implications for these Churches both from a canon law and civil law perspective.

The level of control exercised by the church will influence the extent to which it can control doctrinal issues. A fundamental point should be made at the outset that although it is common parlance to speak of the Church of England and the Roman Catholic Churches, in legal terms they are made up of distinct and separate structures. This means that control and any liability that flows from control will fall upon a particular legal component of that Church rather than the whole Church.

The other fundamental point to make is that whether liability will ever fall upon a particular part of the church will depend on the level of control exercised by an ecclesiastical authority that is recognised by the civil law. For example, in the Roman Catholic Church there is a trend for the laity to take over trusteeships of charities such as schools from the clergy and religious. In general terms, if control is relinquished to the laity then any liability will fall on the laity rather than the clergy or religious that devolved such power.

Structure and control of Church of England charities

The Church of England’s constitutional parts are governed by English law through Acts of Parliament, Measures, Canons and the common law. Since the Church of England is the established Church in England, the State legislates for the Church either directly or indirectly through Acts of Parliament.[1] In addition, the General Synod of the Church of England has the power to legislate by Measure.[2] A Measure has the full force and effect of an Act of Parliament.[3] Canons are regarded as secondary or subordinate legislation, whereas Measures are primary legislation.[4]

The Church of England is not one legal entity. To quote from a recent House of Lords decision: ‘the Church of England is not itself a legal entity. The legal entities are the various office-holders and various bodies set up within that structure.'[5]

Within the Church of England, office holders (corporations sole) such as archbishops, bishops, deans, archdeacons and incumbents (parish priests) and bodies such as Parochial Church Councils, which are ecclesiastical corporations, exist for the furtherance of the Christian faith and for perpetuating the rites of the Church of England.[6]

Each diocese must have a diocesan board of finance (‘DBF’), which is a company and holds property for purposes connected with the Church of England and transacts business in relation thereto.[7] Its composition and fucntions are regulated by Measure: to deal with Church property in accordance with the instructions of the diocesan synod.[8] In practice, diocesan boards of finance are, in addition to the governing Measure, formed as charitable companies limited by guarantee which are registered as charities with the Charity Commission.[9] DBFs are constituted as charitable companies because the Diocesan Board of Finance Measure does not set out exclusively charitable purposes as required by English law and the benefits of charitable status are considered advantageous in terms of tax reliefs which are available to both charities and their donors.[10] In addition to the DBF there are other boards and committees. Some of these will be operating within delegated authority[11] others will be established as a separate charity, such as the former Bradford Diocesan Board of Education [12] – now part of the Diocese of West Yorkshire and the Dales.

Parishes are governed by parochial church councils (‘PCCc’). PCCs are established and governed by the Parochial Church Council (Powers) Measure 1956. PCCs are bodies corporate.[13] The Charity Commission has registered those PCCs requiring registration[14] with the objects of ‘promoting in the ecclesiastical parish the whole mission of the Church’[15] despite the fact that, under the common law, it is not certain that property held for parish work is charitable.[16] As registration confers a conclusive presumption for all purposes that an institution is a charity,[17] then PCCs will be presumed to be charitable.

Church of England schools do not need to be controlled by a Church of England corporation such as a bishop. Voluntary Controlled Schools have a governance structure whereby church or foundation governors are in a minority.[18] The same can be said of foundation schools.[19] Voluntary Aided schools do have a governance which has an absolute majority of church or foundation governors. In addition, there are over 200 independent schools designated as having a Church of England character.[20] These schools may have an ecclesiastical corporation as a trustee but the Church does not control the governing body in terms of a majority nor necessarily express charitable objects including the promotion of the Anglican faith.[21]

Church of England schools converting to academy status convert on an ‘as is’ basis in terms of governance.[22] So a Church of England voluntary aided school converting to academy status will have a majority of its governors appointed by the Church and a voluntary controlled school will have Church-approved governors in a minority.

The Church of England has religious orders as a result of their revival by the Oxford Movement.[23] Although the Church recognises the importance of religious orders it has no ecclesiastical law to regulate and protect them. The Advisory Council on the Relations of Bishops and Religious Communities was established in 1935 as a way of providing a means of Episcopal connection. The position of Roman Catholic religious orders is that they have some autonomy but episcopal supervision. Unlike religious orders in the Church of England, they are governed by canon law.[24]

In the Church of England some charities are perceived to be part of the Church:[25] for example, The Children’s Society, which partners with the Church of England and has as its presidents, the Archbishops of Canterbury and York.[26] It is submitted that there is scope for confusion here.

Structure and control of Roman Catholic Charities

In contrast to the Church of England, Roman Catholic canon law does not generally form part of English law although English law does recognise the constituent parts of the Roman Catholic Church. The position was summed up succinctly by Ward LJ in E v English Province of Our Lady of Charity & Anor:[27] ‘the law of England and Wales does not recognise the Catholic Church as a legal entity in its own right, but sees it as an unincorporated association with no legal personality.’

 That is why Roman Catholic canonical bodies such as dioceses and religious orders tend, for clarity, to establish a domestic law structure such as a trust or a corporate charity to hold and manage property and otherwise conduct their affairs in accordance with domestic law. As in the case of the Church of England, the Roman Catholic Church is both canonically and in the civil law made up of various components.

On occasion the court will look at Roman Catholic canon law as a matter of evidence when determining issues such as the question of vicarious liability.[28] Although the Church of England is governed by English law and the Roman Catholic Church is governed by the Code of Canon Law 1983, there is little difference in reality in terms of the recognition in English law of the constitutional make-up of the two Churches. So, for example, the Charities Act 2011 applies to both the Church of England and the Roman Catholic Church. Going further, it could be argued that to the extent that the law of the state elucidates relations between the Roman Catholic Church and the state, in terms of religious freedom, it too can, in a loose sense, be said to be established just as the Church of England is established.[29]

The Roman Catholic Church is primarily made up of diocesan churches.[30] Diocesan churches are a portion of church members under the care of a bishop.[31] The property of a diocese will be held on charitable trusts with a corporate trustee or by charitable corporations and registered as a charity.[32] Property is to be held in this way for charity as Roman Catholic canon law is not born of English law and often it is desired that a diocese has corporate personality as a charity company or a corporate trustee. In practice, the authority of the bishop is protected in diocesan charities by giving him the power to appoint and remove trustees and a veto over key powers dealing with property.[33]

Within a diocese there are parishes.[34] Parishes are said to be under the authority of the diocesan bishop but entrusted to a parish priest.[35] The legal title to parish property tends to be held by the diocesan trust because the parish has no civil law status. Parishes are not separately registered as charities as they rely on the diocesan registration. It is arguable, though, that parish property is held subject to special trusts enforced by the civil law and that the larger parishes should be separately registered as charities.[36] Under the canon law the property of a parish is administered by the parish priest[37] with the assistance of a lay finance committee.[38] When administering the parish, the parish priest is under an obligation to act in accordance with the limits and administration set out by the bishop.[39] In the 1997 Instruction on Certain Questions Regarding the Collaboration of Non-Ordained Faithful in the Sacred Ministry of Priests,[40] the parish finance committee is said to enjoy a consultative role only and cannot in any way become a deliberative structure.

In England and Wales there are three main types of Catholic school: voluntary aided, independent and academy.[41] Voluntary aided schools[42] were originally created by the Education Act 1944. Typically, the diocese or a religious order will be the foundation holding the land for the purposes of the school and having the right to appoint foundation governors who will form a majority. The LEA is responsible for 90% of the capital funding and the governors 10%. Independent schools are generally run as charities which charge fees to generate income. They have greater freedoms than voluntary aided or academy schools. Academy schools are independent schools which are state funded[43] under a funding agreement which covers 100% of capital funding. They do not charge fees.

Canon 803 §1 states that ‘A Catholic school is understood as one which a competent ecclesiastical authority or public ecclesiastical juridic person directs or which ecclesiastical authority recognises as such through a written document.’ Canon 803 §3 states that even if a school is Catholic, no school shall bear the name ‘Catholic school’ without the consent of competant ecclesiastical authority.

There is no guidance on what constitutes control or the key terms needed in a written document to be recognised by an ecclesiastical authority. In the absence of such guidance, we have to look at how control is secured through the Civil law to see how the Catholic Church complies with Canon 803. This will be through supervision by the bishop, appointment of school governors by a Church authority and/or key Catholic requirements contained in a written document. The requirements of the bishop will vary from diocese to diocese.[44]

A voluntary aided school is a state-maintained school.[45] Voluntary aided status is favoured by the Catholic Church because it is financially advantageous and fits with the canon law. Typically, a Catholic diocese or religious order will provide the school property under a charitable trust deed and will appoint foundation governors who must always be in the majority.[46] Their role is to ensure that it is conducted in accordance with the trust deed. The bishop[47] of the Roman Catholic diocese in which the school is situated has overall responsibility for securing the religious character[48] of the school although at governor level this will be the duty of the foundation governors.

In a voluntary aided school the requirement of control is satisfied through the power of Church authorities[49] to appoint a majority of the foundation governors. Further, the school will be governed by an instrument of government[50] which will provide for the religious ethos.[51] The instrument of government is drafted by the governing body of the school and submitted to the LEA.[52] The LEA needs the approval of the foundation governors, trustees of any foundation and the bishop before making the instrument of government.[53] In terms of control and recognition of a written document by an ecclesiastical authority a voluntary aided Catholic school would fit within the requirements of Canon 803.

Independent schools are usually governed by a registered charity, typically in the form of a charitable company limited by guarantee. A few are run by dioceses[54] but historically many were run by religious orders[55] many of which have transferred the operation of the school to mainly lay Catholic governors.[56] By looking at a selection of governing documents of independent Catholic schools it is clear that actual control by a Church authority, in the sense of appointing a majority of the governors, is unnecessary so long as other key Catholic requirements are contained in the document.[57]

Academy schools are independent non-fee paying schools which receive funding directly from the Secretary of State.[58] The Secretary of State may enter into academy arrangements with any person.[59] This includes independent schools. This status can be achieved by a maintained school applying for an academy order.[60] In the case of a Catholic voluntary aided school the consent of the school’s trustees (diocesan or religious order) and the person or persons by whom the foundation governors are appointed is needed before a school can become an academy.[61]

Academy schools must be governed by a charitable company limited by guarantee.[62] Governance arrangements are left to the promoters of an academy to decide.[63] An agreed model articles of association prepared by the CES and approved by the Department For Education allows for the diocesan bishop and the trustees to appoint a majority of the foundation members and governors, if they wish.

The Roman Catholic Church also has religious Orders which are part of the Church but which enjoy a level of autonomy. The term ‘religious order’ refers to religious institutes[64] and societies.[65] Each religious order will have its own canonical constitution. In addition to the order’s canonical constitution the order’s property will be held on charitable trusts or by a corporate charity. The members of the order will usually be trustees of the order’s charity.

Many charities appear to be Catholic but do not have exclusively Roman Catholic purposes nor are they controlled by the Church.[66] For example, the St Vincent De Paul Society (England and Wales) (‘SVP’)[67] has a long Catholic heritage but it is not controlled by the Catholic Church and nor does it have Roman Catholic purposes. HCPT[68] does have Roman Catholic purposes but is not controlled by the Church. If these charities are perceived to be ‘Catholic’, without any control or recognition, what therefore is the benefit of being a Catholic charity? Part of the reason might be that it will be easier to obtain permission from the bishop to fundraise at Church premises,[69] although the SVP and HCPT frequently collect at Church premises.

Is control necessary in the case of Roman Catholic and Church of England charities?

Control by an ecclesiastical authority is arguably necessary in the case of a Catholic Church charity. Canon 129 says this:

  • 1: Those who have received sacred orders are qualified, according to the norm of the prescripts of the law, for the power of governance, which exists in the Church by divine institution and is also called the power of jurisdiction.
  • 2: Lay members of the Christian faithful can cooperate in the exercise of this same power according to the norm of law.

There are four fundamental issues:

First, does this mean that the power of governance resides in the clergy alone with lay people only participating in a supporting role? This Canon suggests that is the case but it appears to contradict the fact that more generally Canon law gives effect to Vatican II[70] which states that the Christian faithful share, through baptism, in Christ’s priestly, prophetic and royal function and are called to express this vocation in their own way[71] and that all the Christian faithful are fundamentally equal.[72] The laity are called to support the Church[73] in ways such as promoting charity and social justice including assisting the poor.[74] The problem within the Church is that there are limited opportunities for the laity’s vocation to be expressed in a Church where the governance of Catholic Church charities is in the hands of the ordained clergy.[75] One obvious way in which the laity can express their vocation is through charity trusteeships but if they do so without Church control they will not be acting as a trustee of a Catholic Church charity, unless dispensation is granted.

Second, it is arguable that (non-Church) Catholic charities not owning church property will not be caught by Canon 129 §1 and will therefore allow for lay members of the Church to govern without the clergy being in control.

Third, if Canon 129’s purpose is to ensure doctrinal orthodoxy then it overlooks the fact that, from a civil law perspective, the general skills required of a charity trustee are that of an ordinary prudent man of business[76] and not a theologian. It seems sensible for control by the clergy to be limited to doctrinal supervision especially in the case of (non-Church) Catholic charities.

Fourth, it is debatable whether the laity can be delegated the power of governance under Canon law.[77] Canon law does not specify to whom power can be delegated.[78] The Canon law permits the laity to hold several offices of governance[79] but are these the exceptions that prove the rule or do they suggest it is permissible to generally delegate to the laity? The issue has not been resolved.

The civil law requires trustees to be Church members in the case of Church charities including charities run in furtherance of the mission of churches.[80] This principle applies just as much to the Church of England as to the dissenting churches including the Roman Catholic Church.[81] It follows that where a Catholic charity has lay trustees they should be Roman Catholics.[82] In practice the Charity Commission will accept a majority of the trustees being Roman Catholic where there are safeguards to ensure that this is always the case.[83]

Implications of being a Church-controlled charity

There are both canonical and civil law issues with being a Roman Catholic or Church of England Church charity.

Canon law

Roman Catholic canon law includes right of hierarchical recourse, under which a request can be made to the superior to confirm, amend or revoke the subordinate’s administrative decision.[84] In exercising this right the faithful must take into account the common good of the Church, the rights of others, and their own duties towards others.[85] This means that the exercise of rights should not be on an individualistic basis but for a greater good. A key ground for recourse is where a decision was made without proper consultation. The ancient maxim ‘what touches all, as individuals, should be approved by all’[86] provides rights to a wide range of beneficiaries and stakeholders. A recent example of a successful application for hierarchical recourse is the parish church of SS Peter and Paul, New Brighton whose closure was declared null and void.[87] Where a charity is recognised as Catholic but not controlled by an ecclesiastical authority it will be difficult for the faithful to be able to exercise their right to canonical recourse.

In the Church of England the position is much the same. Bishops have a role as ‘chief pastor’ of all within the diocese.[88] Bishops have the right to make visitations to establish whether things are lacking or correcting things that are amiss.[89]

Secular law

From a secular legal perspective, if a charity is controlled by the Church then there might be issues of potential liability for the Church through the law of vicarious liability. Vicarious liability is not based on the fault of the person or organisation held liable for the wrongful actions of another but rather whether a Court considers it fair and reasonable to impose such liability.

An agency relationship between the Church and a person or organisation involved in a Church enterprise will suffice for the purpose of establishing vicarious liability.[90] It is possible that if the Church has a power of appointment of trustees of a charity it might run the risk of vicarious liability. Certainly ‘control’ is a factor in determining liability.[91] If the Church actively exercises a power in a governing document to control charities by removing non-compliant trustees then it runs the risk of being held liable by the court on the basis that it does actually control charities in more than a theoretical sense. Equally, if the Church remains passive and does not exercise its power to appoint and remove trustees then it could be held liable by omission. The solution to this problem might be to align the power of appointment and removal of trustees to purely doctrinal issues connected to the recognition given to such charities through the award of the title ‘Catholic’ or ‘Church of England’ in their name. Even this course of action runs the risk of liability for the Church on the basis that there is an agency relationship between the Church and the charity.

In addition to the question of vicarious liability there are also implications for Roman Catholic and Church of England charities under the Equality Act 2010 in terms of potentially unlawful discrimination.

St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator illustrates the point.[92] In this case the charity was appealing against a direction made by OSCR under s.7 Charities and Trustee Investment (Scotland) Act 2005 for the charity to take certain steps to meet the ‘Charity Test’. The steps involved amending the Charity’s policies and procedures to avoid what OSCR claimed was unlawful discrimination in respect of the protected characteristics of religion or belief and sexual orientation under the Equality Act 2010.

A significant factor in favour of the appeal was that the Scottish Charity Appeals Panel recognised that the Charity was a ‘Catholic Church Charity’,[93] in other words an agency or part of the Catholic Church and that as such had an obligation under Canon Law to follow Catholic principles and not accept commitments which could in any way affect the observance of those principles.[94] If the Charity were to comply with the direction from OSCR as a condition of retaining its charitable status it could no longer, as a matter of Canon Law, operate as a Catholic Church Charity. It would have to server its links with the Catholic Church and would no longer have access to Catholic Church funds. This would mean that it was no longer financially viable for the Charity to continue to operate and would lead to its closure.

The case is significant because it was recognised that the Charity, as part of the Catholic Church, had, itself, human rights, in particular the freedom to manifest its religion.[95] Significant factors in holding that the Charity was not just a secular adoption agency but a religious charity were:

First, the objects of the Charity included the wording ‘all in accordance with the teaching of the Catholic Church’. Second, the main objectives of its activities is to place the children of the Catholic Faith into homes where the Catholic Faith is taught and upheld. Third, there were twelve members and directors, all of whom were appointed by the Catholic Church and the majority members of the Catholic Church. The Catholic majority were bound by the Canon Law of the Catholic Church and required to adhere to the teachings of the Catholic Church in both Canon and Civil Law. The Panel found that the Charity’s preferred criteria for adoption, couples who have been married for more than two years, amounted to indirect discrimination against same sex couples and homosexuals each of whom had protected characteristics under the Equality Act 2010.[96]

For this indirect discrimination to be lawful it needed to fall within the charity exception contained in s193 Equality Act 2010. This excepts a restriction in the provision of benefits to persons who share a protected characteristic if: ‘(a) the person acts in pursuance of a charitable instrument’ and, inter alia, the provision of benefits is a proportionate means of achiving a legitimate aim.

The Panel had decided that the Charity was required by its objects to act in accordance with the teachings of The Catholic Church so its indirect discrimination was in pursuance of a charitable instrument. The Panel also concluded that the indirect discrimination was ‘a proportionate means of achieving a legitimate aim’ because the charity’s aim is to be a faith based organisation and to manifest the faith, inter alia, in an adoption service and to ensure that Catholic adoption is available to Catholic children. The Panel concluded that it was a proportionate because if the Charity was not carrying out the adoption service then there would be no Catholic adoption agency who in terms of The Adoption and Children (Scotland) Act 2007 are entitled to be brought up in the Catholic faith. The Panel also concluded that the charity exemption applied under s.193 of the Equality Act 2010.

There is also an exception which applies to religious organisations.[97] The Panel held that the Charity was an organisation, the purpose of which is to practice a religion or belief,[98] to teach the practice or principles of a religion or belief,[99] to teach the practice or principles of a religion or belief[100] or to enable persons of a religion or belief to receive a benefit, or to engage in any activity, within the framework of this relgion or belief.[101] The Panel concluded that the Ccharity was allowed to discriminate where it provides goods and services under its auspices, in this case an adoption service.[102] There followed the critical consideration as to whether the charity had losts its entitlement to the exemption because it had contracted with the State to provide adoption services.[103] This was a fatal finding in the case of Catholic Care (Diocese of Leeds) adoption agency.[104] However, in this case the Panel took the view that the charity had not contracted with the state but, rather, that the local authority was the agent for the child and the charity was acting as agent for the family. In this case, therefore, it was helpful that the charity was part of the Roman Catholic Church and the case might point towards a development in the law which gives special treatment to ‘Catholic Church charities’ and perhaps other charities which could be described to be part of a religion. Even if to do so involves performing intellectual gymnastics!

Control by the Roman Catholic Church and the Church of England will also be crucial in ensuring doctrinal orthodoxy is maintained. The issue of doctrinal orthodoxy causes difficult issues for both Roman Catholic and Church of England charities. Even though the canon law[105] reflects Vatican II’s teaching that the laity share in the priesthood of the Roman Catholic Church there are apparent differences of interest between the clergy and the laity. Several Catholic Church charities and Catholic charities mainly run by the laity have experienced conflict with the Church on doctrinal issues. For example, the Hospital of St John and St Elizabeth (previously run by an order of nuns) was ordered by Cardinal Cormac Murphy O’Connor to draw up a code of practice to reflect Catholic teaching on matters such as abortion, contraception and gender reassignment operations in 2006 after a dispute between its trustees over the admission of a local NHS GP practice on the hospital premises. The intervention triggered the resignation of four of the trustees, who were asked to resign by the Cardinal.[106]

The Catholic Church charity CAFOD, which is an agency of the Bishop’s Conference, was involved in controversy over its stance on artificial contraception which was taken. In some quarters as indicating the organisation was at odds with Church teaching on the prevention of the spread of HIV/AIDS and causing Cardinal Murphy O’Connor to confirm the Church’s position.[107]

A more recent example is that of the lay parent governors of the Cardinal Vaughan Memorial School who appealed unsuccessfully to the Court of Appeal[108] against the appointment of governors by the Archbishop of Westminster with a view to ensuring, inter alia, that diocesan policy that the school had an admission policy admitting baptised Catholics whose family attended church was enforced rather than an elaborate series of tests devised by the governing body to include active participation.

It was reported that the pastoral letter by the Archbishops of Westminster and Southwark on the Church’s opposition to gay marriage caused considerable dissent.[109] These tensions were also present in the Catholic adoption agency case. As part of its charitable objects the Catholic Care (Diocese of Leeds) adoption agency would not provide adoption services to same sex couples or civil partners because to do so would be outside the tenets of the Roman Catholic Church, which taught that the model of family life is the Holy family of Nazareth. Although the charity was entitled to an exception under the legislation in respect of the supply of goods and services because it was an organisation relating to religion and belief[110] it was not in this case because it had contracted with the state to provide adoption services and in such circumstances the exception was not available.[111]

Catholic Care (Diocese of Leeds) tried to amend its objects to take advantage of an exception for charities which have objects discriminating in favour of a particular category of person if it is a proportionate way of achieving a legitimate aim or for the purpose of preventing or compensating for a disadvantage limited to the characteristic, in this case religion.[112] The Charity Commission refused to give consent for the amendment because it was not persuaded that there would be an increased number of adoptions through its approach and therefore a legitimate aim. The charity appealed to the Charity Tribunal[113] against the Charity Commissioners’ decision, arguing that unless it could discriminate in this way it would be inevitable that the charity would close and this would result in a reduction of adoption services overall and therefore the discrimination was a proportionate way of achieving a legitimate aim (or in other words justified). The Tribunal found that on the evidence it was not clear that this was the case.

A critical factor in Catholic Care (Diocese of Leeds) failing to succeed at the Charity Tribunal was that it was unable to demonstrate that it would not be supported by Catholics if it placed children for adoption with same-sex couples. In fact it had received a letter from the Roman Catholic Caucus of the Lesbian and Gay Christian Movement which stated that the other Catholic adoption agencies who had changed the way they operated in order to comply with the Equality Act 2010 had continued to attract support from Catholics. The Tribunal concluded that there was a whole variety of opinion amongst donating Catholics and therefore it was impossible to conclude that voluntary income would inevitably be lost if the charity operated an open adoption agency. This contradicted the evidence given by the Bishop of Leeds, who said that he thought the receipt of donations and the promotion of the Nazarene structure went hand in hand.[114] Consequently, it lost its appeal.

Contrast the outcome of this case with the successful lobbying conducted by the Catholic Church in 2006, which asked its lay membership to write to the government over the proposal to impose a 25% quota of non-believers on faith schools.[115] This shows that the laity are selective in their support for the Church.

There is a much more important question at stake for the Church here than the expediency of any particular case. One of the fundamental reforms of Vatican II was to confirm the status of the laity through baptism to an apostolate, sharing in the priesthood of the Church.[116] It called for the laity actively to engage, evangelise and transform the world, according to their position in the world, but underpinning the exhortation is the underlying assumption that the laity will be promoting the doctrines of the Catholic Church. From a hierarchical perspective this tends to suggest that it should be careful to continue to control Catholic charities at least in terms of doctrinal issues.[117]

Turning to the Church of England, recent doctrinal disputes have seen factionalisation and departure from the Church raising questions of ownership of property. The issue of the ordination of women priests has led to Anglican objectors seeking accommodation in the Roman Catholic Church through the creation of the Apostolic Constitution Anglicanorum Coetibus[118] which provides for the erection of ordinariates, which are the equivalents to dioceses within the Roman Catholic Church, and for Anglicans to enter into full communion with the Roman Catholic Church.[119] In addition to priests and laity joining there has also been at least one case of a faction of eleven Anglican sisters joining from the Community of St Mary the Virgin in Wantage now known as Sisters of the Blessed Virgin Mary.[120]

Anglicans joining the ordinariate, even en masse as parishes, have no right to take Church of England property which is vested in ecclesiastical bodies. The ordinariate has largely been funded from donations from the Roman Catholic Church[121] but there has been controversy concerning a donation from The Confraternity of the Blessed Sacrament which was investigated by the Charity Commission.[122] The Confraternity’s objects are to advance the Catholic faith in the Anglican tradition. At the time of making the grant a majority of the trustees had converted to the Roman Catholic Church and the Charity Commission noted the conflicts of interest and ruled that the grant was not within the objects of the Confraternity. Providing a refuge for people is one thing but it can lead to legal challenges when there is an attempt to move the property with them.[123]

Developments in the Church of England point to a new approach by Church members flexing their financial muscles as donors. A company called ‘Good Stewards Company’ was reported by The Guardian[124] to have been incorporated with two vicars as directors to raise funds from Church members who want their funds to be distributed amongst churches who reject ‘liberalism’. As The Guardian put it:

“Not contributing to central funds could represent a serious threat to the rest of the C of E, whose cohesion depends in part on a redistribution of money from rich, largely suburban and middle-class parishes to the inner cities and the countryside where congregations are too small and the buildings too old to be economically sustainable.”

This approach could be adopted by other members of religions seeking to use financial means to accommodate their views.

Conclusion

The Roman Catholic Church and the Church of England need to consider carefully the implications of controlling or not controlling their charitable structures both in terms of potential liability, doctrinal orthodoxy and property ownership. This is particularly important as control is increasingly devolved to the laity whose views might be at odds with church authorities.

In terms of structures the two Churches are remarkably similar and this points towards potential collaboration in these issues and perhaps another avenue for ecumenical dialogue.

Robert Meakin

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[1] M Hill, Ecclesiastical Law (3rd Edition, 2007, OUP), p 14. [2] Synodical Government Measure 1969, S2(1), Sch2, art6(a)(i). [3] Church of England Assembly (Powers) Act 1919, s.4. [4] See Hill, Op.Cit p.17 ft 100 approved by Burton J in Calvert v Gardiner [2002] EWHC 1394 (QB), 10 May 2002, unreported. [5] Per Lord Hobhouse in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, at 84. [6] Att-Gen. v St Cross Hospital (1853) 17 Beav. 435, 465. Churchwardens are not a Corporation, but they are a quasi-corporation for certain purposes; see Cripps on Church and Clergy (8th ed.) pp 158-160. See Tudor Charities (8th ed, 1995, Sweet & Maxwell) p 370. [7] See Diocesan Boards of Finance Measure 1925 and M Hill, Ecclesiastical Law (3rd ed, 2007, OUP) p 47. [8] S.3 Diocesan Boards of Finance Measure 1925. [9] For example Guildford Diocesan Board of Finance registered charity number 248245. [10] Inland Revenue: information for charities <www.inlandrevenue.gov.uk/stats/charities/menu.htm. [11] For example the Diocesan Board of Education operates as a committee of the Diocese of Gloucester. [12] See Diocesan Boards of Education Measure 1991 (1991 No. 2), as amended by the Education and Inspections Act 2006. For example, The Bradford Diocesan Board of Education registered charity number 1070206. [13] S.3 Parochial Church Councils (Powers) Measure 1956. [14] Charities are required to be registered by the Charity Commission unless excepted or exempt from registration (Charities Act 2011, S.1 (1)). They are excepted from registration when registered under the Places of Worship Registration Act 1855 (Charities Act 2011, Sched 3) and their gross income does not exceed £100,000: the income threshold was introduced by the Charities Act 2006 and the regulations relating to the exception in 2008 (Charities Act 2011, s 30 (2) (a) & (b) and Charities Act 1993 (Exception from registration) Regulations 2008, 2008 No 3268, reg 2 (2) (e). [15] For example see Parochial Church Council of the Ecclesiastical Parish of St Mary the Virgin, Primrose Hill with St Paul, Avenue Rd, registered number 1132701. For an example of the Charity Commission construing the objects of a charity governed by statute where they are not expressly set out in a charitable form see: Decision of the Charity Commissioners for England and Wales; made 2nd April 2001 relating to the Application for Registration as a Charity by the General Medical Council. [16] Farley v Westminster Bank [1937] AC 430. [17] S.37 (1) Charities Act 2011. [18] <www.churchofengland.org>. [19] Ibid. [20] Ibid. [21] For example see Durham High School for Girls, registered charity number 1119995. [22] <www.education.gov.uk>. [23] <www.ocista.webs.com/anglicancistercians>. [24] See paragraph 3. [25] This is also true in the Roman Catholic Church: see paragraph 3 of this article. [26] See www.childrenssociety.org.uk. [27] [2012] 2 WLR 958 at 963. [28] Ibid [29] N Doe, The Legal framework of the Church of England: A Critical Study in a Comparative Framework (OUP, 1996), p 508. [30] Cn 368. [31] Cn 369. [32] For example the RC Diocese of East Anglia holds its property on charitable trust by a corporate trustee with the bishop, clergy and lay people as directors. [33] See for example the trust deeds of the dioceses of East Anglia and Northampton. [34] Cn 515. [35] Ibid. [36] See R Meakin, ‘Who owns the Property of a Parish Church in the Roman Catholic Church in England and Wales’, CL&PR Vol.14.5. For the counter argument see R King, ‘Parish Property in the Catholic Church-A response to Robert Meakin’, CL&PR Vol 14.7. [37] Cn 532. [38] Cn 536. [39] Cn 1281. [40] Instruction p 21, art 5. See Beal, Corriden & Green New Commentary on the Code of Canon Law (Paulist Press, 2000), pp 709-711. [41] For a review of schools and their development see D Morris (2011) ‘Building a big Society: will charity’s creeping reach generate a new paradigm for state schools?’ (2011), Journal of Social Welfare and Family Law 33:3, pp 209-226. [42] Sch 2, School Standards and Framework Act 1998. [43] S6 (8) Academies Act 2010. [44] Note that a bishop has legislative, executive and judicial power within his diocese: Cn 391 (1). [45] S.20 and Sch 2 to School Standards and Framework Act 1998. [46] School Governance (Constitution) (England) Regulations 2007 No 957, reg 18 (1) (d), 2 (b). See R. (the application of Parent Governors of the Cardinal Vaughan Memorial School) v Roman Catholic Archbisop of Westminster [2011] EWCA Civ 433 for the duty on the jurdic person when appointing foundation governors. [47] S.69 (4) School Standards and Framework Act 1998. [48] As designated by the Secretary of State under s. 69 (3) School Standards and Framework Act 1998. [49] School Governance (Constitution) (England) Regulations 2007 No 957 Part 3, reg 18 (1) (d) & (2) (b). [50] S.37 (1) School Standards and Framework Act 1998. [51] School Governance (Constitution) (England) Regulations 2007 No 957, part 5, reg 30 (1) (i). [52] Ibid, reg 31 (1). [53] Ibid, reg 31 (2). [54] For example, Bishop Challoner School in the Archdiocese of Southwark. [55] For example, Stonyhurst College (Jesuits). [56] For example, St Mary’s College, Cambridge. [57] Stonyhurst and St Mary’s Colleges. [58] S.6 (8) Academies Act 2010 (designated as an independent school having a religious character). [59] S.1 Academies Act 2010. [60] S.3 (1) Academies Act 2010. [61] S.3 (4) (a) & (b) Academies Act 2010. [62] S.12 (1) (2) Academies Act 2010. [63] The only requirements that the DfE imposes is that there are at least two parent governors and that no more than one-third of the governors are employed by the academy trust. [64] Cn 607 (2). Examples include Benedictines, Franciscans, Dominicans and Jesuits. [65] Cn 701. Examples include Oratorians Daughters of Charity and Paulists. For a discussion on the differences between them see J Coriden, An Introduction to Canon Law (2004, Burns & Oats) pp 99-100 [66] For Church of England example see paragraph 2. [67] Registered charity number 1053992. [68] Registered charity number 281074. [69] Cn 1265. [70] In particular Lumen Gentium[71] Cn 204. [72] Cn 208. [73] Cn 222. [74] Cn 222 (2). [75] See Beal, Coriden and Green, New Commentary on The Code of Canon Law (2000, Paulist Press) pp 184-185. [76] Per Lord Blackburn in Speight v Gaunt (1883) 9 App. Cas. 1 at 19 although note a higher duty of care is expected of professional trustees: Re Rosenthal [1972] 1 WLR 1373. Note the statutory duty of care under the Trustee Act 2000 in respect of exercising the powers of investment, buying land, appointing agents, nominees or custodians or taking out insurance. Section 1 of that Act sets out the duty of care to exercise such care and skill as is reasonable in the circumstances depending on any special knowledge or experience that the trustee has (or claims) and in the case of a professional trustee any knowledge or experience they ought to have. [77] See Beal, Coriden & Green, New Commentary on The Code of Canon Law (2000, Paulist Press) 185. [78] Cn 131. [79] For example, finance officer of the diocese (Cn 492) and a religious institute (Cn 636), member of a diocesan finance council (Cn 492), lay person in charge of a parish (Cn 517 (2)), administrator of ecclesiastical goods (Cn 1279), judge (Cn 1421 (2), auditor (Cn 1428), promoter of justice (Cn 1435) and defender of the bond (Cn 1435). [80] See Re Norwich Charities (1837) 2 M & C 275 at 305; Re Stafford Charities (1857) 25 Beav 28 and Baker v Lee (1860) 8 HL Cas 495 at 513. See above for examples of charities with purposes to further the mission of the Catholic Church. [81] See Baker v Lee (1860) 8 HL Cas 495 at 513. [82] As defined by Cn 205. [83] See Stonyhurst College.[84] Cn 119 (3). [85] Cn 223 (1). [86] Cn 119 (1). [87] www.c20society.org.uk. [88] Canon C18. [89] Canon G 5 para 1 of The Canons of The Church of England. [90] JGE v 1. The English Province of Our Lady of Charity and 2. The Roman Catholic Diocese of Portsmouth [2011] EWHC 2871 at para 34 quoting the Supreme Court of Canada decision in Doe v Bennet and Others [2004] ISCR 436 at para 27. [91] Ibid at para 42. See also Various Claimants v Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106. [92] St Margaret’s Children and Family Care Society v Office of the Charity Regulator App 02/13 31st January 2014. [93] The author’s classification. See Benedict XV1 Apostolic Letter ‘On the Service of Charity’ (2010) Art 7(2). [94] St Margaret’s Children and Family Care Society v Office of the Charity Regulator App 02/13 31st January2014 as para 500, page 18. [95] Article 9(2) European Convention Human Rights. The Panel also recognised the rights of the child to be adopted who was entitled to have his or her religious persuasion taken into account. [96] S.19(3) Equality Act 2010. [97] Sched 23 Equality Act 2010. [98] Sched 23 para 2(1)(a) Equality Act 2010. [99] Sched 23 para 2(1)(b) Equality Act 2010. [100] Sched 23 para 2(1)(c) Equality Act 2010. [101] Sched 23 para 2(1)(d) Equality Act 2010. [102] Sched 23 para 3(c) Equality Act 2010. [103] Sched23 para 2(1)(a)+(b) Equality Act 2010. [104] See later in this paragraph. [105] Cn 129. [106] The Independent 23 February 2008. [107] The Universe 12 December 2004. See also ‘Where Cafod Stands’ by Ann Smith The Tablet 23 September 2004. [108] See R (Parent Governors of the Cardinal Vaughan Memorial School) v Roman Catholic Archbisop of Westminster [2011] EWCA Civ 433. [109] The Tablet 16 March 2012. [110] Equality Act 2010, Sch 23 para 2 (1)-(2). [111] Equality Act 2010, Sch 23 para 2 (10) (a) & (b). [112] S 193 Equality Act 2010. [113] Catholic Care (Diocese of Leeds) v The Charity Commission First Tier Charity Tribunal 10th and 11th March 2011. [114] Ibid at para 28. [115] See www.cesew.org.uk. [116] Decree Apostolicam Actuositatem (1965). See also Christifides laici (1989) and Cn. 225. [117] Cn. 205 defines full communion with the Catholic Church, which includes acceptance of ecclesiastical governance. [118] Approved by Pope Benedict XVI on the 4th November 2009. [119] ACAC, Introduction and 1.1 and 1.4. [120] Catholic Herald’12 December 2012. [121] See www.ordinariate.org.uk FAQ. [122] Church Times 20 January 2012. [123] See ‘Whitterings The Musings of an Archdeacon’ by The Venerable Edward Simonton OGS www.archdeaconalwhitterings.blogspot.co.uk. [124] The Guardian 17 May 2012.

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