The draft Cathedrals Measure is due for First Consideration debate at General Synod on Monday 8 July. Copies are now available of the Draft Cathedrals Measure, the Explanatory Notes, and a supporting paper on the Theology of Cathedral Governance, based on a consultation held at St George’s Windsor on 1-2 April 2019, led by the Third Church Estates Commissioner, Dr Eve Poole.
The Cathedrals Measure 1999 (the “1999 Measure”) sets out the statutory framework for Cathedrals and provides for the regulation of a number of cathedral activities by the Church Commissioners. In its final report in June 2018, the Cathedral Working Group (“CWG”) set out its recommendations for the future regulation of cathedrals, the most significant of which relate to the governance structure of cathedrals, including changes to the composition of a cathedral’s Chapter and the bringing of cathedrals within the definition of “charity” in the Charities Act 2011, to enable the Charity Commission to exercise its regulatory and facilitative powers under that Act in relation to cathedrals.
The CWG Report was endorsed by General Synod in July 2018 and a motion was passed requesting the Archbishops’ Council to bring forward a draft Measure for First Consideration at the General Synod in July 2019 to give effect to those recommendations that involve legislative change. Following First Consideration in July 2019, Synod members are able to table such amendments as they consider necessary in relation to any provisions in the draft Measure for consideration by the Revision Committee and the approval of Synod in February 2020.
Proposed co-regulation of cathedrals by the Charity Commission of England and Wales and the Church Commissioners
As noted above, the CWG Report recommends that cathedrals should be brought within the definition of “charity” in the Charities Act 2011 to enable the Charity Commission to exercise its regulatory and facilitative powers under that Act 2011 in relation to cathedrals and that there should be more, rather than less, oversight of cathedral finances and financial transactions. As the Charity Commission does not regulate many of those activities which are currently regulated by the Church Commissioners, if the draft Measure provided only for cathedrals to be brought within the definition of “charity” in the 2011 Act much of the regulation and scrutiny of (in particular) significant financial transactions made by cathedrals would be lost.
Following discussions with the Charity Commission, it is proposed that the Church Commissioners and the Charity Commission co-regulate various aspects of cathedrals’ activity. As a consequence, the Charity Commission would be the registrar and regulator of the cathedrals so far as they are charities, in accordance with the framework set out in the Charities Act 2011 and related legislation. However, the Church Commissioners would regulate those cathedral activities that are not regulated by charity law or the Charity Commission and over which the Church Commissioners currently have (or the CWG Report recommends that they should have) regulatory oversight. A summary of the regulatory powers proposed to be conferred on the Church Commissioners by the draft Measure is set out in the Annex of the Explanatory Notes.
The Charity Commission has indicated that it would be willing to enter into a formal Memorandum of Understanding with the Church Commissioners as co-regulator of cathedrals (an “MOU”). This MOU is expected to set out when and how the Charity Commission and the Church Commissioners will work together to regulate cathedrals generally, as well as if a concern is raised about a cathedral in the future: for example, if a cathedral reports a serious incident which the Charity Commission considers requires further investigation.
However, neither the Measure nor the MOU can limit or restrict in any way the Charity Commission’s ability to exercise its regulatory powers in relation to cathedrals. It is therefore expected that the MOU would also provide for how the Church Commissioners would work in tandem with the Charity Commission should it exercise certain of its statutory powers during a statutory inquiry: for example, the removal of a Dean as a charity trustee or the appointment of an Interim Manager.
Structure of the Measure
The Draft Measure contains 49 Clauses under the main headings:
- Ecclesiastical Purpose (1)
- Bodies (2,3)
- Governing Instruments &c, (4 to 6)
- Roles and Responsibilities, (7 to 16)
- Property, (17 to 25)
- Finance, (26 to 28)
- Amendment of governing instruments, (29 to 32)
- Safeguarding, (33 to 37)
- Parish Church Cathedrals (38, 39)
- Removal from office (40)
- Church Commissioners: exemption from liability in damages (41)
In addition, there are the usual “housekeeping provisions” – Interpretation (42), Transitional Provisions (43-45), Consequential amendments and repeals (46, 47), Final (48, 49) – and four Schedules.
The Measure applies to cathedrals in England only but does not apply to the Cathedral Church of Christ in Oxford (48); in addition, provisions are made for certain amendments to the drafting in relation to the three cathedrals in the diocese of Leeds, which is the only diocese with more than one cathedral (Ripon, Wakefield, and Bradford).
Most of the Explanatory Note is concerned with the details of the specific clauses, (pages 2 to 20), and extracts from those of particular interest are listed below:
Clause 2: The Chapter
In order to improve the governance of cathedrals, the CWG Report recommended that all trustee functions should sit with the expanded Chapter rather than being split between the Chapter and the Council, with the College of Canons also being part of the cathedral’s body corporate.
S.2(1) provides that the Chapter alone is the body corporate of the cathedral and s.2(2) of the draft Measure provides that Cathedral Councils in their current form will cease to exist. The functions currently carried out by Councils will, under the draft Measure, be carried out by the reconstituted Chapter as the charity trustees of the cathedral. However, Chapters will still have the option of setting up an advisory council of stakeholders (see s.15 and paragraph 45 of these Notes). Such a council would not have any statutory functions but would have those functions delegated to or conferred on it by the Chapter.
Clause 3: The College of Canons
S.3 provides that, although the College of Canons will continue to exist with the same membership as under the 1999 Measure, it will no longer form part of the body corporate of the Cathedral. In addition, the College of Canons will have such functions as are conferred on it by the constitution and statutes of the relevant Cathedral, rather than by the draft Measure and so it will be up to each individual Chapter, in consultation with the bishop, to decide how best to use its College of Canons, based on the needs and particular circumstances of each Cathedral and diocese. S.3(6) provides that this section is modified by Schedule 2 in relation to the three cathedrals in the diocese of Leeds.
Clause 4: Constitution
S.4(1) requires all cathedral constitutions to include the objects of the cathedral, which are set out in s.4(1) – (3). A separate heritage object has been included at s.4(1)(b) to make it easier for cathedrals to apply for grants from those grant-makers which expect to see a standalone heritage object.
S.4(4) lists what the constitutions must include, which is an updated version of the list set out in s.9 of the 1999 Measure. The list includes a requirement for a Cathedral to have a finance committee and a nominations and development committee, as well as providing for the appointment of statutory roles, such as an architect and an auditor etc.
Clause 5: Statutes
In addition to the list in s.11 of the 1999 Measure as to what must be provided for in a Cathedral’s statutes, s.5(1) of the draft Measure also provides for the following to be included in the statutes: (a) the functions of the chief officers (s.5(2)); and (b) the establishment of the group of senior managers (s.5(3)).
Clause 6: Application of the Charities Act 2011
S.6(1) amends s.10 Charities Act 2011 so that cathedrals are no longer excluded from the jurisdiction of the Charity Commission.
Clause 7: The bishop
S.7(1) and (2) confirms that the bishop continues to have the principal seat and dignity in the cathedral and provides that the bishop may, after consultation with the Chapter, officiate in the cathedral and use it for diocesan and other occasions.
Ss.7(7) – (9) confers power on the bishop to commission a review of such aspects of the Cathedral’s finance, governance, management, operations and mission as he or she considers necessary and appropriate, implementing the CWG Report’s recommendations in relation to a quinquennial assurance review.
S.7(10) clarifies that for the purposes of Schedule 6 of the Charities Act 2011, the diocesan bishop (in his or her corporate capacity) is “a person who is or may be affected by the order”. This will remove any doubt that the diocesan bishop has the right to appeal a decision of the Charity Commission in relation to the cathedral and to make an application in the Charity Tribunal accordingly/
Clause 8: The Visitor
S.8 provides for the bishop to remain the Visitor for the cathedral, with the same power to conduct a Visitation as under the 1999 Measure.
Clause 9: The Chapter
S.9 of the draft Measure reflects the provisions in s.4(8) of the 1999 Measure, which have been updated to remove any references to the Council of the College of Canons, as they no longer form part of the body corporate of the cathedral.
Clause 10: The dean
Ss.10(1) and (2) set out the ecclesiastical position and duties of the dean, reflecting S.7(1) and (2) of the 1999 Measure, with the addition of new clause 10(2)(c), which provides that the dean is to oversee the work undertaken by cathedral clergy and staff in relation to the cathedral.
Ss.10(3)-(5) sets out when the dean’s consent is required, reflecting the position in s.7(3) of the 1999 Measure.
Ss.10(6) and (7) provides that the clergy and staff of the cathedral are accountable to the Chapter, through the dean, for their cathedral duties.
Clause 11: Interim dean
This clause expands the bishop’s existing powers under ss.7(4) and (5) of the 1999 Measure to appoint a residentiary canon to carry out the dean’s functions when the office of the dean is vacant. Ss.11(1) and 11(4) reflect the position in the 1999 Measure; but s.11(1) also enables the bishop to appoint another member of the clergy who is appropriately qualified to be so appointed (s.11(5)), where there is no residentiary canon who is qualified to be appointed as the interim dean.
Clause 14: Finance, Audit and Risk Committee
S.4(4)(i) requires the Chapter’s constitution to establish a Finance, Audit and Risk Committee (FARC), which may be constituted as two separate committees – a finance committee and an audit and risk committee – if the cathedral wishes to do so.
Clause 16: Senior management group
S.5(3) of the draft Measure requires the statutes of each Chapter to establish a group comprising those holding the most senior management positions in the cathedral, with responsibility for its day-to-day management. S.16(1) lists the roles which this group must include, such as the dean, those residentiary canons with responsibility for a particular department, the person(s) holding the “chief officer” roles and such other senior members of staff (both clerical and lay) as the Chapter considers appropriate. S.16(2) requires the statutes to provide for how this group is to operate and be held accountable to the Chapter.
Clauses 17 to 25: Property
Clauses 17 to 25 concern cathedrals’ holding of property and land: Vesting of cathedral property in Chapter; Property held by Chapter as trustee; Acquisition of land; Disposal of land; Questions as to whether property is permanently endowed; Investment powers, etc.; Proceeds of disposal forming part of the endowment; Allocation of housing; and Inspection of Cathedral Property.
S.25 reflects s.20 of the 1999 Measure, with s.25(3)(c) including a new requirement for a copy of the report to also be sent to the Church Commissioners.
Clauses 26 to 28: Finance
These clauses concern: Payments from the Church Commissioners’ general fund; Borrowing powers; and Accounting matters.
S.27(3) introduces a new safeguard, as recommended by the CWG Report, which places a new requirement on cathedrals which are seeking to take on unsecured debt. In addition to complying with the charity law requirement that the Chapter can demonstrate that any prospective debt can be serviced and repaid, Chapters will be required to seek consent from the Church Commissioners if any prospective debt would cause the Cathedral’s total borrowings to exceed such thresholds as may be set by the Church Commissioners from time to time by Order.
Clauses 29 – 32: Amendment of Governing Instruments
Clauses 33 to 37: Safeguarding
S.33 amends s.5(2) of the Safeguarding and Clergy Discipline Measure 2016 to include members of Cathedral Chapters in the list of relevant persons which must have “due regard” to the House of Bishops’ safeguarding guidance. By including the members of Chapters in the list of those who are required to have “due regard”, cathedrals will be brought within the procedures set out in the new guidance for reporting safeguarding serious incidents agreed with the Charity Commission in October 2018. As a result, they will be required to send copies of all safeguarding serious incident reports submitted to the Charity Commission to the National Safeguarding Team, so that the national database of safeguarding serious incidents will include such incidents reported by cathedrals as well.
The Explanatory Note comments on the apparent confusion on the meaning of “due regard” arising from the IICSA hearing:
“87. It is noted that, in its report in May 2019, IICSA criticised the duty to have “due regard” and recommended that it should be amended. How best to address IICSA’s criticism is currently under consideration and, should changes be made to the s.5 requirement to have “due regard” in the future, those changes will also apply in relation to the duty being imposed on the members of Chapters under this section”.
However, the meaning of this term should have been clear to anyone who had read the House of Bishops’ Safeguarding Policy Statement of the Church of England. As we noted earlier:
“One feature of the hearings was the widespread lack of understanding of the meaning of the term “due regard” (specifically in Canon C30); “Very few individuals who gave evidence to the Inquiry said they understood what this meant, including the Archbishop of Canterbury himself”. However, this is clearly set out in the House of Bishops’ Safeguarding Policy Statement of the Church of England (2017) .”
The new safeguarding provisions in clauses 34 to 37 are designed to impose additional safeguarding restrictions on who may be a Chapter member. They are similar to the new safeguarding provisions in the new Church Representation Rules, which will apply to all Parochial Church Councils from 1 Jan 2020.
Clauses 38 and 39: Parish Church Cathedrals
At present, a small number of parish church cathedrals would like to cease to have a parish. In accordance with the recommendation in the CWG’s Report, this clause confers power on the Church Commissioners to make a scheme, which will be made in a similar way to mission and pastoral schemes, to enable those cathedrals which no longer wish to have a parish no longer to be a parish church cathedral (s.39(2)).
In order for such a scheme to be made, the Chapter will need to ask for it to be made (s.39(1)). In addition, any such scheme must include provision for the appointment of the dean (s.39(3)).
With thanks to Becky Clark for highlighting the Draft Cathedral Measure and providing a copy of the Explanatory Note