In 2014 we posted Ignorance of the Faculty Jurisdiction Rules is no excuse… following two strongly-worded judgments in Re Emmanuel Church, Leckhampton  Gloucester Cons Ct and Re St Giles Uley  Gloucester Cons Ct where the actions of the Priest-in-Charge and churchwardens were sharply criticized by the chancellor. However, the criticism levelled at the Priest in Charge and churchwardens by Chancellor Rogers in these cases was quite mild in comparison to that in the recent case Re St Mary Mildenhall  ECC SEI 1, which concerned “a flagrant disregard of the faculty jurisdiction” by both the P-i-C, the churchwardens and an electrical contractor and in which the P-i-C “had decided ‘to take the risk'” of proceeding without a faculty .
Regardless of whether such infractions result from ignorance of the faculty jurisdiction or intentional disregard for it, clergy and PCCs need to be aware of the legal, insurance and financial consequences of such actions.
Proceeding without faculty approval by-passes various “checks and balances” inherent within the faculty jurisdiction. These were clearly outlined by Etherington Ch  as:
- depriving the public of a right to express opposition to, or observation upon, the scheme.
- pre-empting any consideration by the DAC or Chancellor that bodies such as the Church Buildings Council, Historic England or the relevant Amenity Societies might need to be consulted.
- depriving the DAC of its right to advise the Chancellor about the proposals prior to their implementation and prevented any proper consideration as to other important matters such as the way the work was carried out and appropriate insurance arrangements
He made it clear that a faculty is not some kind of optional extra:
“The [Diocesan Advisory Committee], even if it had been favourable to the scheme as envisaged by the architect, does not decide whether a faculty is granted. That is solely within the jurisdiction of the Chancellor or Deputy Chancellor of this diocese. The clue is provided by the word ‘advisory’ in Diocesan Advisory Committee…” [32: emphasis added].
Reputational damage and possibility of further action
Where work undertaken in the absence of a faculty comes before the consistory courts, it is inevitable that the matter will receive a degree of exposure through local and national media outlets, publications such as the Church Times, and to a certain degree through L&RUK. Ironically, in Re St Mary Mildenhall, the petition relating to the siting and fixture of the speakers was initiated when it was brought to the attention of the P-i-C by a “blog”, (unnamed in the judgment  but certainly not ours). Such exposure may result in reputational damage to, and further action against, the clergy and churchwardens involved and the contractors employed to undertake the work. More generally, it may call into question the reputation of the faculty jurisdiction in relation to the ecclesiastical exemption.
Clergy and Churchwardens
Disciplinary action against the clergy involved is seldom, if ever, reported in the public domain, and it is certainly not the role of L&RUK to “name and shame” or campaign on such issues. However, in Re Emmanuel Church, Leckhampton, which concerned the sale of a painting without authority, the Chancellor ordered that “a copy of this judgment is to be displayed publicly for 28 days following receipt in the Church of Emmanuel, Leckhampton, and shall be available on line and from the Diocesan Registrar ; and “the Diocesan Registrar sends copies of this Judgment forthwith to secretaries of trade bodies for auctioneers and fine art and antique dealers in the United Kingdom .”
Re St Ebbe with Holy Trinity and St Peter Le Bailey  Oxford Const Ct, Bursell Ch, [summarized (2012) 14(1) Ecc LJ 143] concerned the sale of two antique chests; the court noted that the incumbent was vulnerable to a complaint under the Clergy Disciplinary Measure 2003 and the churchwardens could be disqualified from holding office under the Charities Act 1993. However, the Chancellor took no steps to invite sanction, acknowledging that this was a single incident of misbehaviour and that appropriate behaviour and remorse had been shown by the petitioners. However, the auctioneers were criticized for their failure to ensure that the sales had been authorized by faculty.
With regard to civil action, in Re Emmanuel Church, Leckhampton, the Chancellor warned 
“…[d]isposal of any such item without a Faculty is akin to theft of Church property, and I, as Chancellor of this Diocese, will not hesitate to involve the Police, were it to be necessary, to ensure that any such item is recovered. Indeed, in this particular case, I was on the point of so doing, when the whereabouts of this item became known …”.
In addition to such professional reputational damage and legal action, those involved might be subject to personal liability claims. In Re Emmanuel Church, Leckhampton where the painting in question was sold at auction at a “hammer price” of £20,000, the Chancellor stated :
“I note and warn further, that if this faculty is refused, the Priest in Charge and the Church Wardens might expect to be sued personally by the auctioneers and the ‘buyer’ for their losses, including the Priest-in-Charge facing a very unpleasant dispute as to what she did or did not say about permission to sell to the auctioneers”.
Contactors and architects are also subject to similar risks; although seldom named in judgments, a contractor specializing in work in churches might encounter some resistance when bidding for future work. Our post Clergy blacklists, blue files and the Archbishops’ List was primarily concerned with safeguarding issues; however, we noted that the blacklisting of organizations (such as those with indifferent safety records) is fraught with legal concerns. However, within the Church of England faculty jurisdiction, the courts have imposed short-term embargoes on the use of contractors who have acted in contravention of the ecclesiastical law and also removed the names of approved inspecting architects: see Re Bishop Hannington Memorial Church, Hove  Chichester Const Ct, Hill Ch. Although there appeared to be a prima facie evidence that the electrician involved was complicit in the wrongful act in Re St Mary Mildenhall , action, if any, will be determined once a full explanation has been sent to the Diocesan Registrar.
In Re St Mary Mildenhall, the Chancellor stated :
“exemption from listed building consent provided to listed ecclesiastical buildings such as this church, known colloquially as the ‘ecclesiastical exemption’ and granted by section 60 (1) Planning (Listed Building and Conservation Areas) Act 1960 is predicated upon there being an equally rigorous system being maintained for the regulation of alteration to such listed buildings”.
Our post, Ecclesiastical exemption: where things stand in the four jurisdictions, noted that the Department of Culture, Media and Sport published its conclusions on the operation of the exemption in England in July 2005: The Ecclesiastical Exemption: the Way Forward; it decided that the system of exemption should continue but that it would “be monitored periodically”. Nevertheless, there are a number of organizations that regularly challenge perceived “religious privilege” and examples such as this, if not addressed by the courts, could be cited as reasons for its abolition.
Quite apart from the reputational damage, the financial consequences of proceeding without a faculty can be significant in the following three areas.
Costs for remediation
These will depend upon the facts of each case and the degree of remediation required. The grant of a confirmatory faculty in Re St Mary Mildenhall in relation to the fixing and positioning of the speakers was subject to conditions  which required diocesan experts to specify the design and installation of the new speakers and to define the work necessary to repair the stonework and woodwork. With regard to the more recent lighting scheme, the Chancellor’s final decision upon the application for a restoration order was adjourned for 36 days to allow a petition for a faculty to be presented: both the reinstatement of the status quo under a restoration order or further work under a new faculty are likely to impose substantial additional and unwanted costs on the PCC, [see postscript, below] .
In addition to the cost of any works necessary to restore the fabric to the status quo ante – or something like it – there is also the matter of court costs. As Etherington Ch pointed out,
“This court does not benefit from public funding. It has to recoup its costs, or such part of them as is allowed, from those who use it or, as on this occasion, irresponsibly and unnecessarily caused the cost to be incurred. Whilst these costs are prescribed by Order, and do not represent the cost of the same work carried out commercially, they are still likely to be very considerable to those looking after tight budgets in austere times. It is a ridiculous waste of money that, from the parish’s point of view, could have been used in a different way. My own broad perusal of The Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2015 suggests the figure will be well in excess of £3000, although proper and itemised assessment of the fees is for the Registrar” .
Other financial issues
Underpinning Re St Ebbe with Holy Trinity and St Peter Le Bailey and Re Emmanuel Church, Leckhampton was the priest/PCC’s reliance upon local auction houses, summarized in the latter as a “[lacking] the experience in the sale of this kind of specialist painting to give an accurate estimate” : in Re St Ebbe with Holy Trinity and St Peter Le Bailey the auctioneer valued the two chests at £500 to £750 and £250 to £350, respectively, whereas they sold at auction for £15,500 and £3,800, respectively; in Re Emmanuel Church, there was an initial estimate of £1,000, later revised to £3,000 to £4,000 but the painting was sold at auction for £20,000. The financial implications on the parish were less in the case of Re St Ebbe with Holy Trinity and St Peter Le Bailey: whilst the petitioners were required to meet the cost of the action, the Chancellor granted permission to withdraw the petition for a confirmatory faculty for the sale of the two chests. Consequently, in the absence of a faculty, the title could not be passed, thus rendering the purported sales ineffective.
However, in the latter case “[e]ither way Emmanuel Church lost out, but no sale would be absolutely disastrous for the parish. If they had to repay the money, notwithstanding what they had left, together with the costs of the restoration etc, this parish, whose Priest in Charge was on the point of going to a church in the Diocese of Europe, would be bankrupt”.
We have commented before on the relative ignorance of C of E clergy of the nuts and bolts of the Church’s ecclesiastical law. In Re St Mary Mildenhall, however, the incumbent was fully aware of the need for a faculty but chose to ignore the rules. On 2 June, Charles Mynors’ new book, Changing Churches – A practical guide to the faculty system, was published by Bloomsbury. It would probably be a good idea for a PCC contemplating any kind of reordering or new works to buy a copy: for £36, it might prove to be money well spent.
David Pocklington and Frank Cranmer
Chapter 11 of Changing Churches – A practical guide to the faculty system considers the legal issues associated with various scenarios in relation to “Unauthorized Works”. Of particular is section 11.3 on restoration orders which places in context the action of the Archdeacon and the decision of the Chancellor in Re St Mary Mildenhall. In the book, Charles Mynors comments: “[w]here those responsible are willing to co-operate, they can in theory seek a faculty to carry out the necessary works to restore the position to what it was, or realistically, the Archdeacon can seek one – which will presumably be readily forthcoming. Where – as is more likely – those responsible for the unauthorized works are unwilling to co-operate, it will be necessary for the archdeacon or the court to seek a restoration order, which will specify what has to be done to reverse the effect of those works and require that to be achieved.” The procedure for obtaining a restoration order is now governed by Part 16 of the Faculty Jurisdiction Rules 2015. However, Mynors subsequently adds “…the use of a restoration order is often not a particularly helpful solution to what is, in most cases, a pastoral problem.
Also cited is Re Balham St Mary  All ER 193, Southwark Const Ct. in which Chancellor Garth Moore pointed out:
“Work done without a faculty is illegal, and remains illegal for all time. If, however, a confirmatory faculty is granted, it means that from that point in time onwards the situation is legalized; but it does not retrospectively legalize what has already been done, and the perpetrators of the illegalities remain personally liable for any wrong they have committed, though for the future the confirmatory faculty brings them within the four walls of the future”.
Consequently, a restoration order is not truly retrospective, unlike planning permission granted by a local authority which has effect from the date on which the work was undertaken.
Cite this post as David Pocklington and Frank Cranmer, “Risks of disregarding the faculty jurisdiction” in Law & Religion UK, 3 June 2016, https://www.lawandreligionuk.com/2016/06/03/risks-of-disregarding-the-faculty-jurisdiction/