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.