Part 3 (of 3) of our analysis of new CofE legal opinion on organists
In which we consider whether Canon B 20 reflects the current patterns of music in the Church of England. The new and updated Parish Music: organists and choirmasters and church musicians, (“the Opinion”) was added to the Church of England’s Document Library on 4 April 2017 together with legal advice on other issues. This was covered in our posts: Parish Music Guidance: Ministers and organists and Parish Music Guidance: employment issues, the latter prompting a comment on the relevance to churches where there is no organist or choir. Whilst it is clear that both Canon B 20 and the Opinion encompass organists and “all musicians in similar positions” [though clearly not “all musicians”], in practice their application to “church music groups” is not necessarily straightforward.
In 1947, the Canon Law Commission recommended the two-paragraph Canon XXIX, Of the Hymns, Anthems, and the Music of the Church. This did not address employment issues; it focused on the music and in comparison to the present provisions, gave the minister more authority in relation to the selection and performance of the music. It stated [emphasis added]:
“1. In all Churches and Chapels … it belongs to the Minister to direct when the organ shall be played and when it shall not be played, to decide upon which parts of the service shall be sung, and to choose all the chants, hymns, anthems, and other settings, both the words and the music, with the assistance as he may see fit to employ from persons skilled in music and liturgy.
2. [as the paragraph 3 of the present Canon B 20]”.
In his post The Unknown Bellringer: Bells and Organs, Philip Jones points out that the most recent (1988) changes to Canon B20 introduced provisions relating to the appointment and removal of parish organists/musicians. The Opinion put it more bluntly: “[t]he PCC’s agreement was introduced as a requirement in 1988 to prohibit ‘shot-gun’ dismissals or summary dismissal by the minister acting solely on his or her own initiative” .
As a simplistic generalization, paragraphs 2 and 3 of the present Canon B 20 are primarily concerned with ecclesiastical matters, whilst paragraph 1 concerns matters on which statutory employment law has a significant influence. Unsurprisingly, employment-related issues comprise the greater part of the Opinion [paragraphs 8 to 33 inclusive, and also the Appendix]. Jones notes supra that whilst a cathedral is required by s 9(1)(g) Cathedrals Measure 1999 to have a “director of music”, parish organists and music directors cannot be “officeholders”, and “therefore must either be volunteers from the congregation, or paid servants or contractors”: Re Royce  1 Chancery 514.
The term “organist, choirmaster or director of music” is used only twice in Canon B 20, paragraph 1 of which indicates that the term “choirmaster” is not a unique designation for persons undertaking such a role. However, the Opinion uses the term “organist” 78 times but “musician” only 5 times, including its usage in the title; consequently, despite the explanation in paragraph 1, it is easy to overlook that this term includes “all musicians in similar positions”, particularly when only specific sections are read.
The pattern of music in parish churches has changed since the 1988 revision of the canon, and the music in a large number of Churches, both in the Church of England and in other denominations, is no longer dependent upon an organ and choir; the music for services may be played with a different solo instrument or a group of instrumentalists, and one or more vocalists. Robin Rees provides an interesting snapshot of the situation at about the time of the 1988 revision in his 1990 PhD thesis, The Role of Music and Musicians in Current English Parish Church Worship: the Attitudes of Clergy and Organists.
Nevertheless, as the principle underpinning music in church, Canon B 20 remains applicable to the present patterns used in worship and its application is relatively straightforward when used in conjunction with the explanation in paragraph 1 of the Opinion, particularly where there is a 1:1 relationship between the minister and the principal instrumentalist or the lay person directing the music. Although the new model contract produced by the Guild of Church Musicians referred to in the Opinion is specifically for organists, it may be adapted to cover other musicians. [Other bodies such as the Royal School of Church Music and the Incorporated Society of Musicians also publish similar draft contracts for their members/subscribers].
When applying Canon B 20 to situations in which there is more than one instrumentalist, the agreement between the PCC and those involved is particularly important. A potential difficulty in drawing up a contract to address these circumstances is the definition of the relationship between the minister and the group. Where there is a director of music/choirmaster and an assistant organist, there is a clear hierarchy set by the nature of their roles; this continues when additional musicians are brought in for specific events, since they remain “under the baton” of the director of music.
However, such a relationship may not exist in relation to a group of musicians, unless one of the group is clearly identified as the leader. Furthermore, as with organists, there are likely to be a number of cases where both the musician(s) and the parish have no intention or desire to enter into any legally binding contract, especially in small parishes. Paragraph 2 of the Opinion notes:
“In all such cases it is best practice to set out that determination in writing, spelling out the reasons for so deciding and stating that there is no intention to create any legal relationships; this is particularly so if the [organist] receives any remuneration for his or her services”.
In many cases, “non-choir/organist”-based music is provided what is often described as “the Church Music Group”; the extent to which such a generic description is adequate for the purposes of a contract will depend upon local circumstances. However, for purposes of taxation, the church may need to provide HMRC with details of payments made. In relation to the payment of church musicians, the RSCM reflects views of the Opinion and advises [emphasis added]:
“all churches and all church musicians to draw up a contract or formal letter of agreement as part of the process of settling remuneration. This is as important when a church musician is engaged on a voluntary basis or for a small honorarium as it is when employing a church musician as a salaried professional – and for all the different modes of engagement in between“.
It also notes that in April 2013, HMRC changed the regulations in April 2013 about how employees are paid through PAYE, and has provided advice on how these changes affect the payment of church musicians. This advice states:
“Some churches may be uncertain as to whether some of their workers, for example, organists, bell ringers or choristers, are employees or independent contractors. HMRC has a helpful tool on the HMRC website called the Employment Status Indicator (ESI) that will help a church determine whether the worker is self-employed or an employee. The tool is anonymous so no personal details about the worker or the church are needed.”
In conclusion, the answer to the question “Does Canon B 20 reflect current patterns of music in the Church of England?” is “Yes”. However, the Opinion Parish Music: organists and choirmasters and church musicians would benefit from a degree of modification to provide a closer alignment with present practice, although it is important to retain those parts in which there is a direct reference to Canon B 20.
Furthermore, even if a congregation and its musicians have “no intention or desire to enter into any legally binding contract”, it should not be forgotten that, in case of a dispute, the courts and tribunals will not hesitate to look behind the wording of any agreement to the actual situation that existed between the parties: see Sholl v PCC of St Michael’s with St James, Croydon  ET/2330072/2010, which we referred to at length in our earlier note.
- Part 1 of our analysis: Ministers and organists
- Part 2 of our analysis: Parish Music Guidance: employment issues.