Considerations of the binding nature of CBC guidance
The Church Buildings Council (CBC) has published a wide range of valuable guidance on issues ranging from Accessibility to Working at Heights and a recent consistory court judgment has considered the binding nature of this guidance. The footnote in recently-issued CBC Guidance on Seating carries the statement [emphasis added]:
“This guidance is issued by the Church Buildings Council under section 55(1)(d) of the Dioceses, Mission and Pastoral Measure 2007. As it is statutory guidance, it must be considered with great care. The standards of good practice set out in the guidance should not be departed from unless the departure is justified by reasons that are spelled out clearly, logically and convincingly“.
Earlier versions of this Guidance did not include this footnote.
In Re All Saints West Burnley  ECC Bla 6, Chancellor Bullimore considered the application of the CBC Guidance on Seating [“the Guidance”] with reference to differing approaches taken in the consistory courts and in R (Munjaz) v Mersey Care NHS Trust  2 AC 148, the leading case on statutory authority. With regard to the above footnote, he stated:
“. There is nothing in the Measure itself (which is the equivalent of an Act of Parliament or statute, as a matter of law) that spells out how or to what extent or by whom any guidance is to be followed or enforced, so what does this footnote mean? The phrase ‘statutory guidance’ does not mean simply that it emanates from a body set up under a Statute or Measure. If it meant only that it would be pointless to state it. It means much more than that, and if it did not, then the footnote would appear to be without foundation under the Measure”.
Whilst concurring with other parts of the consistory court judgment, the following discussion reaches a different conclusion from that reached in the above paragraph; the Code of Practice in Munjaz had been subject to parliamentary scrutiny, and therefore had statutory authority. Furthermore, it is difficult to evince what added-value the inclusion of the footnote gives to the January 2017 revision of the Guidance, compared with the March 2015 revision, in which it was absent.
Application of Guidance by the consistory courts
In Re All Saints West Burnley, the Chancellor stated : “the test (or framework or guidelines) within which the court is required to come to decisions about proposed alterations to listed buildings is set out principally in paragraph 87 of the decision of the Court of Arches (subject to refinements in two later cases) in Re St. Alkmund, Duffield  Fam 158“. With regard to the replacement of pews:
“. Until recently, the wishes of the congregation as presented through the petitioners, would have a large, or even the largest, part to play in the choice of any replacement seating. The advice of the DAC would be sought, and might be given in strong terms, and of course the chancellor would make the final decision. Nonetheless, the preferences and choices of the congregation would play a very large part, despite any hesitations and criticisms from the DAC, the Victorian Society or even the CBC itself, in the relatively rare case it would be consulted…
. However, the legal landscape appears to have changed in the most recent period, and that has to be addressed…petitioners have frequently sought permission to introduce upholstered seating of some kind, whereas recent guidance from the Church Buildings Council (CBC), adopted enthusiastically by the Victorian Society (VS), suggests…that generally, un-upholstered furniture should be introduced into our listed buildings… the CBC Guidance Note on the subject…has now been re-issued, doubtless with some minor modifications, but enshrining the same approach, as recently as January 2017…
. The core of the Council’s views in the current Guidance Note is set out in Part 6 and appears to be in exactly the same terms as it was in the earlier Guidance…
The Chancellor then noted two recent contrasting consistory court decisions: that of Chancellor Eyre QC in Re Holy Trinity Long Itchington  ECC Cov 7 in which he permitted removal of the pews but refused permission for that style of chair identified by the petitioners [37-45]; and that of Chancellor Turner QC in Re St Mary Magdalene, Ashton upon Mersey  ECC Chr 1. In this latter case, despite his own and others’ concerns on the type of chair, determined that, on balance, the benefits of the proposed furnishings would outweigh any harm to the church [46-47]. He summed these up as follows:
“. Whatever the outcome in these individual cases, it is apparent that both Chancellor Eyre QC, and Chancellor Turner QC, treated the CBC Guidance as such, that is, as guidance, and sought to evaluate the parish’s proposals in each case against the views set out in the Guidance. In short, the latter did not automatically ‘trump’ the views and wishes of the petitioners, so that the latter were forced to have un-upholstered seating. Chancellor Eyre spoke with approval of the Guidance, whereas Chancellor Turner raised some real concerns about it“.
. Although it is appropriate to acknowledge the expertise of the CBC, it is better in my view not to refer to the Guidance as ‘expert evidence’. Rule 11.5 of the Faculty Jurisdiction Rules 2015 controls the use of expert evidence by parties in the consistory court very closely…The expert’s duty is to the court and must be expressly acknowledged to be such, the report must set out the expert’s qualifications, and sources relied on and so on. It must canvass the range of opinions held on the subject and give reasons for the particular view put forward…
. Expert evidence therefore looks very different from the Guidance, and is plainly focussed on the particular case in a way the Guidance cannot be. The former is attributable to an individual. The latter does not cover alternative views. Further the Guidance can canvass wider ground than an expert report is likely to do.” [italicized emphasis in original, our underlining]
R (Munjaz) v Mersey Care NHS Trust
Chancellor Bullimore noted  that in Munjaz the House of Lords held inter alia, by a majority, that the hospital’s departure from the Code about reviews of seclusion was, in its particular circumstances, lawful. Lord Bingham gave the leading speech (at page 181) and at paragraph 21 said:
“It is in my view plain that the Code does not have binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by (the claimant) show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care. and from which it should depart only if it has cogent reasons for doing so…in reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires”.
At paragraph 49, Lord Hope stated:
“The Court of Appeal said, ….. the Code is something that those to whom it is addressed are expected to follow unless they have good reason for not doing so … l would go further They must give cogent reasons if in any respect they decide not to follow it. These reasons need to be spelled out clearly. logically and convincingly. I would emphatically reject any suggestion that they have a discretion to depart from the Code as they see fit”.
The Chancellor suggested [58-59] that If these extracts from Munjaz correctly set out how the Seating Guidance is to be applied, then “indeed a different world has come upon us. The Guidance is undoubtedly helpful in drawing attention to factors that need to be considered in choosing replacement seating”. However, he stated [emphasis added]:
“. In law, ‘context is all’. In Munjaz, the courts were dealing with an extremely sensitive situation…the Secretary of State had issued a Code of Practice containing specific and detailed provisions relating to seclusion, and required individual hospitals to give their own written guidance to their medical staff. The latter had not for instance been told simply to make provision to limit the use of seclusion, or how often it could and should be reviewed…
 …the Guidance emanates purely from the CBC itself…But what it chooses to issue guidance about, it decides on; there has been no obligation placed on it by Measure or anything equivalent, to give guidance on seating. If it had not done so, it could not convincingly be said to have failed in its duty. It chooses its own subjects.
. …what is offered is extremely prescriptive, even if appears to leave open the possibility of many different options of seats and pews/benches – almost any, provided they are not upholstered…
. In its opening paragraph of part 6, the CBC indicates it “generally” advocates the use of high quality wooden chairs.’ There is no indication when it would be prepared to take a different view, and the impetus for doing so must inevitably therefore come from the parish itself. The Guidance appears to me to be couched in such broad and comprehensive terms, that if applied rigorously it would have the nature of instruction rather than guidance. If the CBC does not spell out when it would countenance a departure, then it must fall to parishes to do so.
The difference with the thrust of the extracts from Munjaz seems to me to be clear; the essential argument there was not whether there should be reviews of seclusion, but whether it was justifiable to depart from the particular terms of the Code at this hospital, having regard to all the relevant circumstances. With an individual church, the PCC has to take the initiative in opting for upholstered furniture; that must be down to the PCC’s choice in its particular circumstances. That must include what furniture, if any, is there already, and what particular purposes or aims the PCC seeks to meet. Does the PCC want to provide community space of some kind, run conferences or training courses, where upholstered furniture will really be a sine qua non for potential clients or visitors and so on?”
The Chancellor concluded:
“ Until directed otherwise, I think I shall only want to be satisfied that petitioners wishing to introduce new seating, have seen and considered the Guidance and explain why, if it be the case, they want to depart from it. (I do not ignore of course the general requirements as set out in the Duffield guidelines, but am seeking to deal here with the CBC Guidance). It will be necessary also to make sure that in offering any advice, the DAC will if possible seek to explain why a departure from the Guidance may be justified”.
Statutory Authority and Statutory Guidance
Statutory guidance may take various forms:
- provisions with statutory authority: these have statutory authority if they have been considered and approved by Parliament, and may also require Ministerial approval of the draft. Nevertheless, as Lord Bingham noted in Munjaz, supra, even in the circumstances under which the Code was produced, “it does not have binding effect which a statutory provision or a statutory instrument would have”; and
- provisions issued under statutory authority: whilst primary legislation may require a body to produce guidance, this need not be approved by Parliament (or Synod) and therefore does not per se have statutory authority, although it may indirectly impose legal obligations.
Other guidance and standards relied upon by the courts have no statutory basis. For example, since 2000 the UK has followed the recommended exposure limits of the Commission on Non-Ionizing Radiation Protection (ICNIRP) for mobile telecommunications, see Re St James Kidbrooke  EACC 1.
Section 55 1(d) of the Dioceses, Mission and Pastoral Measure 2007, states that the functions of Church Building Council in relation to churches etc. in use, is:
“to promote, in consultation with such other persons and organisations as it thinks fit, by means of guidance or otherwise, standards of good practice in relation to the use, care, conservation, repair, planning, design and development of churches”.
This differs from the Code of Conduct [“the Code”] considered in R (Munjaz) v Mersey Care NHS Trust made under S118 Mental Health Act 1983 Act. This requires the Secretary of State for Health (§1) to publish a prescriptive Code of Practice (§2) containing guidance for hospitals and others on the use of seclusion for such patients, aimed at containing severely disturbed behaviour. The Code must be placed before both Houses of Parliament (§4), and as such it has statutory authority, rather than being issued under statutory authority. Furthermore, in Munjaz , the House of Lords concluded that such authority is qualified, supra.
There is little doubt that the CBC Guidance is “statutory guidance” since it was produced under Section 55 1(d) of the Dioceses, Mission and Pastoral Measure 2007. However, in view of the statement of Lord Bingham, supra, it is unlikely to have the same binding effect as a statutory provision or a statutory instrument would have, i.e. it has no statutory authority. If this is the situation in relation to the Code in Munjaz, it applies a fortiori to the Guidance, which has not been placed before Parliament or General Synod.
Although there is no direct line of authority to Parliament/Synod under the Dioceses, Mission and Pastoral Measure 2007, under rule 9.6 Faculty Jurisdiction Rules 2015 there is a mandatory requirement for a Chancellor to seek the advice of the CBC on the proposals that fall within paragraph (1) and, in other cases, an optional provision under rule 9.7 whereby a chancellor may seek the advice of the CBC where he/she thinks that this would be of assistance.
The important issue in applying the Guidance seems therefore to be the nature of the advice that is sought of the CBC by a chancellor in relation to a particular situation, rather than its exact legal status, i.e. the CBC’s considered view as set out in section 6 of the Guidance, produced under Section 55 1(d) of the Dioceses, Mission and Pastoral Measure 2007, “to promote…standards of good practice”; or specific advice on the case under consideration under rule 9.6 or 9.7 of the Faculty Jurisdiction Rules 2015.
Whilst addressing a different part of the FJR, Chancellor Bullimore comments [at 50] on expert evident are pertinent:
“Expert evidence [where taken, and subject to the requirements of rule 11.5 FJR 2015]…looks very different from the Guidance, and is plainly focussed on the particular case in a way the Guidance cannot be. The former is attributable to an individual. The latter does not cover alternative views. Further the Guidance can canvass wider ground than an expert report is likely to do“.
Under the 2015 Rules, Form 12 (Rule 9.8) Request for advice from Church Buildings Council contains information on: the nature of the proposal; exact details of the proposal (petition/application, Statement of Need; copies of plans &c; photographs; DAC’s notification of advice, and the aspects on which the Chancellor is seeking advice.
In Re Holy Trinity Long Itchington, at  Chancellor Eyre referred to “the powerful and considered advice of the Church Buildings Council. In its Guidance Note on Seating the Council says…” By contrast, in Re All Saints Lindfield  ECC Chi 4, Chancellor Mark Hill commented:
“…By oversight, contact was by letter under r 9.5 of the Rules rather than in Form 11 under r 8.8 [in relation to the 2013 Rules] as ought to have been the case. Notwithstanding this minor procedural error, the response of the CBC is startlingly unhelpful. It does not identify which of the CBC’s concerns have not been addressed, but intimates there are some. It apparently did not occur to the CBC that the court expressly sought its expert opinion was because I was of the view the view that the earlier correspondence did not provide the court with sufficient help. Regrettably, therefore, the court is disadvantaged in only having very limited advice from the CBC, framed when the proposals were at a much earlier stage of their gestation”.
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There are two sets of CBC guidance that have a different status to the guidance on seating and other topics. These are the guidance on trees and on bells. Both are listed in the new Rules under lists A and B as guidance that applicants ‘must have regard’ to.
Clearly, they do not have to be followed in all matters, but the wording ‘regard to’ would imply that applicants would need to justify adequately why they were not following the advice.
Thanks Nigel. The “must have regard” references in relation to trees and bells is significant since they are included in the Faculty Jurisdiction Rules 2015, rather than in the CBC guidance alone. [There were no such references in relation to CBC Guidance in the 2013 version of the Rules, where it was intending applicants who were requited “to have regard to” the written guidance given by the chancellor in relation to trees, r3.5].
The meaning of ‘have regard to’ in the context of a requirement to have regard to guidance was considered in R (o.a.o. London Oratory School) v The Schools Adjudicator  EWHC 1012 (Admin) . The judge reviewed relevant case law and concluded [at 58]:
“’have regard to’ involves a greater degree of consideration than merely to ‘consult’ (see  above) but plainly does not mean… ‘follow’, or ‘slavishly obey’…the “clear reasons” referred to by Laws LJ must in my judgment objectively be proper reasons, or legitimate reasons. While recognising that ‘good’ as a qualifying adjective has been widely used by many distinguished judges in previous authorities, I resist Mr. Moffett’s invitation to use that adjective to describe ‘reason’, as ‘good’ in my judgment imports (or may import) a subjective element into the test, which would have the effect of reducing clarity and predictability. I further resist the use of the word ‘cogent’ to qualify ‘reason’; a ‘cogent’ reason, if used in the sense of ‘convincing’ (see the quotations from [R (Munjaz) v Mersey Care NHS Trust [2006) 2 AC 148] at  above), again has a strong and unwarranted subjective element, and probably raises the bar too high in this context. It seems to me that ‘compelling’ introduces a subjective ingredient which is stronger even than ‘good’ or ‘cogent’, and again places the bar far higher than is appropriate in this context”.
I’m not a lawyer, but I found the remarks about ‘good’ from the judge you quote ‘unsound’. I would have thought that an applicant could disregard the CBC guidance if they could persuade the Consistory Court that their arguments were good ones. Merely having arguments, even relevant arguments, would be insufficient if those arguments were poor. i.e. ‘good’ = ‘persuades the court’?
The case is of particular interest since it relates to the phrase “to have regard to” in the context of departure from diocesan guidance. We wouldn’t venture to suggest that the remarks of Mr Justice Cobb were “unsound”, particularly when he had reviewed “a number of the relevant authorities”. However he noted [at 58] that “’good’ as a qualifying adjective has been widely used by many distinguished judges in previous authorities”, and it is possible that another judge would have come to a different conclusion. Nevertheless, “good” is only one of the qualifying adjectives that has been used in this context, and the judge’s objection was the introduction of a subjective elements into the “have regard to” test.
Of course, it would be quite wrong for you to suggest his views were ‘unsound’ – leave that to amateurs like me.
I remain confused by the judge’s wording. Clearly, one would not want merely ‘subjective’ tests, but what would be the nature of ‘objective’ tests of whether proper regard has been taken of guidance. This is not merely an academic matter, as the tree adviser for my diocese, in reviewing List B applications on behalf of the archdeacon, how should I assess whether a parish has had proper regard for the CBC Guidance when they are not following it? (I should admit here that as a former member of the CBC I had quite a hand in the drafting of the text of the current guidance, so I am not fully impartial.)
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