The following is based on a recent submission of the Historic Religious Buildings Alliance (HRBA) to the DCMS English Churches and Cathedrals Sustainability Review and is posted with the kind permission of the HRBA Chairman, Trevor Cooper.
The Historic Religious Buildings Alliance (HRBA) has called on the DCMS English Churches and Cathedrals Sustainability Review to examine and help resolve the current confusion over whether or not parish councils may spend money on local church buildings.
Under the current law, parish councils and similar bodies raise a precept that enables money to be spent on matters that are important to, and benefit, the local community. A little while ago, the HRBA became aware that the Society of Local Council Clerks (SLCC) took the view that parish councils and similar bodies in England and Wales (such as civil parish councils that have declared themselves by resolution to be “town councils”) were prohibited from giving money to places of worship – the suggestion being that s 8(1)(i) Local Government Act 1894 prohibited such financial support and that – unlike other aspects of that Act – there was no subsequent legislation that overrode the prohibition.
S 8 enumerates the powers of parish councils; and 8(1)(i) reads as follows:
“(i) to execute any works (including works of maintenance or improvement) incidental to or consequential on the exercise of any of the foregoing powers, or in relation to any parish property, not being property relating to affairs of the church or held for an ecclesiastical charity.” [emphasis added].
A letter dated 6 May 2014 from Brandon Lewis MP, who was at the time Parliamentary Under Secretary of State at DCMS, confirmed that the Government agreed that the 1894 prohibition was still in force, though it did not offer any analysis of the relationship between the 1894 Act and subsequent legislation. Mr Lewis suggested that the possibility of changing the legislation would be looked at, but so far as is known, there has been no progress on the matter.
Others take a different view of the legal position. The Church of England argues that parish councils already have the necessary powers to make such grants under the powers in s 137(1) or (3) Local Government Act 1972; and the Church of England Funding Guide states that
“Section 137 of the Local Government Act 1972 permits a Local Authority (whether at county, district or parish council level) to contribute towards the maintenance, repair of adaptation of churches on the basis that the expenditure would be in the interests of, and bring benefits to, some or all of the inhabitants of the area.”
It has also been suggested that if the parish council is “eligible” and has adopted the power of general competence under s 1 Localism Act 2011, there would be no limit on the amount it could spend on church repairs. However, the HRBA is aware of two cases in which an auditor has told a parish council that, under the 1894 Act, it cannot give money to a local church despite the express wish of the council to do so. Apparently, the SLCC has raised the issue with the Government again and has asked for the removal of what the SLCC regards as a prohibition. It is possible that that might be done by a Legislative Reform Order rather than primary legislation.
This is evidently a situation in which the answer to the question at the head of this article depends on which statutory provision you believe takes precedence. Watch this space.
It is clear to me that the words in section 8 of the 1894 Act have to be read in their context, which was that the powers and duties of the parish vestry were being transferred to the civil parish, except for powers and duties relating to the church, meaning the Church of England church building of the parish. The Act creates a civil parish which has no particular responsibility for the church. However it is entitled to spend money on “parish property” which is not defined, and therefore includes any property in the parish apart from the Church of England church, if read literally, but we have to read Acts of Parliament if possible as not creating religious discrimination.
There is nothing in the Act which could be read as prohibiting spending money on the Baptist Chapel, the Roman Catholic Church or the Methodist Church, the Sikh Temple, the Synagogue, or the Mosque, so this cannot be read as prohibiting spending money on the Cof E Church. It is simply making it clear that the Civil Parish Council, unlike the parish vestry which it is derived from, has no particular connection with the Church of England and so has no particular responsibilty for the Church.
I don’t know that it’s as simple as that: “a statute means exactly what it says and does not mean what it does not say”: per Lord Bridge of Harwich in Associated Newspapers v Wilson  2 AC 454–490 at 475. On the other hand, ss 137(1) and (3) Local Government Act 1972 seem to be at variance with s 8(1)(i) Local Government Act 1894: so do the later provisions repeal or modify the earlier one by implication? There’s obviously considerable uncertainty in the minds of at least some district auditors and I suspect that that uncertainty can only be dispelled by fresh legislation.
That said, I suspect that your rationale for s 8(1)(i) of the 1894 Act is the correct one – though it may be that it prohibits expenditure on churches of the Church of England and the Church in Wales only; but if the matter were to come before a court, would it be possible for the court to go behind the words of the statute? If not, then the prohibition (in the narrow reading) presumably persists.
The 1894 Act also prohibits spending on the property of an ecclesiastical charity which under the Act includes “a charity, the endowment whereof is held for some one or more of the following purposes:—
(a) for any spiritual purpose which is a legal purpose; or
(b) for the benefit of any spiritual person or ecclesiastical officer as such; or
(c) for use, if a building, as a church, chapel, mission room, or Sunday school, or otherwise by any particular church or denomination; or
(d) for the maintenance, repair, or improvement of any such building as aforesaid, or for the maintenance of divine service therein; or
(e) otherwise for the benefit of any particular church or denomination, or of any members thereof as such.”
On that basis spending on a Baptist church, Sikh Gurdwara, Jewish Synagogue, etc., is also prohibited.
Thank you: that seems definitive.
There is a similar but related question about Parish Councils making contributions to churchyards used for burials. Does LGA 1972 s214(6) permit this?
I do not think that the matter is as simple as making a distinction between the Civil Parish Council and the Parish Vestry. The prohibition in S8 of the LGA 1894 would seem to be to prevent the new Parish Councils from giving money to an already rich church from the precept. ‘No payments to the Church’ therefore satisfies the ‘literal rule’ and also the ‘mischief rule’ of interpretation. The 1894 Act is clear and still applies until it is formally altered. It may be absurd through today’s eyes but there is no ambiguity and it stands until altered.
For what it’s worth, that’s my view as well.
I am looking at the possibility of the Parish Council giving support to the Church by helping with its running costs, not the repairs to the fabric of the building. I am thinking of insurance, electricity, maybe even our parish share. What do you think?
I think you ought to consult a practitioner with a specialist knowledge of local government law. My own view – for what it’s worth – is that the prohibition on “executing any works” in s.8(1)(i) Local Government Act 1894 is still in force. Whether helping with electricity bills, however, falls under s.8 is another matter.
Given the uncertainties in the legislation, might you ask your MP to take up the point with MHCLG?
Thank you all for your considered advice on this. For what it’s worth, I am treasurer of a “free” church (i.e. non-denominational) and a couple of years ago, the local parish council advertised that it had a budget available to support voluntary organisations. Only two organisations applied, and both were successful – my own church (towards the replacement of the gas boiler that heated our premises) and the Anglican parish church (towards the upkeep of their graveyard)! I argued our case on the support we give to the community, particularly the elderly, and only a proportion of the cost was bid for. I had no knowledge of the question of powers, and I suspect neither did the parish clerk.
Does this apply only to funds raised by the parish council via the precept? If it administers a fund provided by an outside organisation is that also covered here or could the church apply for funding from that source, via the parish council?
As I (and various subsequent commentators) have said, the law is very unclear. However, my own view, for what it’s worth, is that the bar applies only to funds raised under the precept. If a parish council administers a fund which was not parish council money in the first place, I don’t see how the restriction on grant-aiding a place of worship exclusively from that fund could apply.
But I’d be interested to see what others think.
Our village has been offered a small area of land outside the local churchyard for a community village garden and a village garden group has been created and heads of terms set up for its upkeep. The PCC will be taking on the lease. However, can the group ask the local parish council for a donation/grant towards it?
It can ask but it may well be unsuccessful, because the law is unclear – as you can see from this post.
I have recently become Chairman of “the Friends” of our local Church. “The Friends” is a registered charity, is non-ecumenical and was set up by a group of villagers to ensure (hopefully) the continuance of a church building in our village. We have no direct links to the PCC.
Our objects are to enable, inter alia, the maintenance of the churchyard including the gravestones and crosses, some of which require attention.
On behalf of “The Friends” I recently applied to our village PC for a grant to assist in the cost having regard to the fact that villagers make use of the churchyard for contemplation and rest. Quoting section 8 of the Local Government Act 1894, our application was rejected. Is the PC correct in rejecting on this basis?
That’s precisely the problem: I have no idea because the law is unclear. On balance, if I were a member of our parish council I would vote to reject any such application – simply on the grounds of that lack of clarity.
PS: I’ve just asked my younger daughter – who’s a parish councillor – and she says that she wouldn’t do it either.
I have taken over as Chair of a local Parish Council and I have been going through our books and I have noted over the years large sums going to the church for it up keep. I have stopped this immediately and brought it to the attention of other councillors, since then I have been contacted by the local Church council asking for their money, when I mentioned Local Government Act 1894, they were a bit miffed, next minute I have the local vicar emailing me and email from the Church Solicitors going on about the Local Government Act 1972, but they dropped the Church Maintenance and said we had to pay up for the up keep of the Church Yard, as we were the local Authority on Burials??
Can anyone help me out, as I am totally baffled by this.. Cheers Nick
As you will have seen from the post, our view is that the current law is unclear; however, we don’t give legal advice because we are neither qualified to do so, nor do we carry the necessary indemnity insurance against something going wrong. Might I suggest that you consult your local authority’s legal department? Local government law will be one of the things that it specialises in.