In March 2017, I posted with permission a piece based on the HRBA’s submission to the English Churches and Cathedrals Sustainability Review. My earlier post attracted various helpful comments and did not address the issue of burial grounds at all – and there have also been subsequent developments. I updated the post on 10 June 2019, but that update included a reference to a version of Parish Resources Funding Guide 13 that has been superseded. What follows is a further update: the earlier post has been binned.
In 2017, the Historic Religious Buildings Alliance (HRBA) called on the DCMS English Churches and Cathedrals Sustainability Review to decide whether or not civil parish councils (and parish councils that have declared themselves by resolution to be “town councils”) may spend money on local church buildings and to resolve the current confusion. Under the current law, civil parish and town councils in England and Wales raise a precept that enables money to be spent on matters that are important to and benefit the local community: however, there are opposing views on whether or not they may make grants to places of worship.
Grant-aiding places of worship: the arguments against
The HRBA became aware that the Society of Local Council Clerks (SLCC) took the view that parish and town councils are prohibited from giving money to places of worship – the suggestion being that s 8(1)(i) Local Government Act 1894 prohibits such financial support and that – unlike other aspects of that Act – there has been no subsequent legislation that has decisively overridden 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 at the time was 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 still been no progress on the matter.
Michael Hall, a solicitor, suggested that the words in s.8 of the 1894 Act must be read in context – the context being that the powers and duties of the ecclesiastical parish vestry were being transferred to the civil parish except for those relating to the Church of England parish church – and that Its intention was to make it clear that the (civil) parish council, unlike the parish vestry, had no particular connection with the Church of England and no particular responsibility for the parish church. Since, in his view, there is nothing in the Act which may be read as prohibiting spending money on non-Anglican places of worship such as a gurdwara, a synagogue or a mosque – and because statutes must be construed in a way that it non-discriminatory – s.8 cannot be read as prohibiting spending money on the Church of England parish church.
Gary Barker, however, pointed out that s.75(2) (Construction of the Act), as amended, provides that:
“The expression ‘ecclesiastical charity’ 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.
Provided that where any endowment of a charity, other than a building held for any of the purposes aforesaid, is held in part only for some of the purposes aforesaid, the charity, so far as that endowment is concerned, shall be an ecclesiastical charity within the meaning of this Act; and the Charity Commission shall, on application by any person interested, make such provision for the apportionment and management of that endowment as seems to it necessary or expedient for giving effect to this Act.
The expression shall also include any building which in the opinion of the Charity Commission has been erected or provided within forty years before the passing of this Act mainly by or at the cost of members of any particular church or denomination.”
On that construction, it would appear that all places of worship are entirely outside the scope of grant-aid by a parish council, not merely parish churches.
Grant-aid to places of worship: the arguments in favour
Others take a different view of the legal position. The Church of England has previously suggested 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 an earlier version of its Funding Guide 13, now superseded, said as much in terms. The current Funding Guide 13, however, makes no reference to the issue whatsoever.
In March 2017, the Church of England’s Church Buildings Council posted an opinion, Local Authority Investment in Church Property, in which it cast doubt on the position adopted by the National Association of Local Councils (NALC), as follows:
“1. The Church Buildings Council is aware that the National Association of Local Councils has recently circulated a briefing note in which they re-state their belief that the 1894 Local Government Act prevents parish councils from spending money on churches. This document lays out the views of the Church Buildings Council on this matter.
2. The Church Buildings Council, following legal advice, has concluded that the provisions of the Localism Act 2011 and the Local Government Act 1972 allow for all local authorities, including Parish Councils, to contribute to the upkeep of church property under certain circumstances – mainly related to the public benefit achieved.
3. Our view is supported by the 2017 English Cathedral and Church Buildings Sustainability Review (p.31-32), commissioned by HM Government (emphasis added):
“The law should be clarified, whether through legislative change or the issue of guidance, to establish that local authorities are not prohibited from awarding funding to churches.
Section 8 of the Local Government Act 1894 confers a number of additional powers on a parish council. Among these is the power to execute works subject to the condition that they do not relate to property relating to the affairs of the church. The Local Government Act 1972, however, permits a local authority (whether at the county, district or parish council level) to contribute towards the maintenance, repair or adaptation of churches and even possibly levy a parish rate 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. Evidence submitted to the Review suggested that there is considerable confusion as to whether the 1972 Act supersedes the Local Government Act 1894, and that the 1894 Act is still perceived as a barrier, preventing investment in church buildings by local authorities.
Clarification on this point should be given, whether by repealing section 8 of the 1894 Act, or by the issue of guidance. This should clarify that local authorities can invest in church buildings in accordance with Section 137 of the Local Government Act 1972. Additionally, repeal or the issue of guidance should clarify that certain parish councils are also able to fund church buildings using powers contained in the Localism Act 2011.
The Act allows certain parish councils, as long as they meet certain criteria, to pass a resolution which allows them to have the benefit of the so-called “General Power of Competence”. An eligible parish council is one in which at least two-thirds of the members have been elected (i.e. not co-opted), and in which the clerk has completed one of a specified range of training courses. Having passed such a resolution, the relevant parish council would have the power to fund repairs and improvements and changes to church property (albeit it would have to take such a decision in line with its proper internal processes).”
The Church Buildings Council’s opinion went on to say that it was “working with the Government to implement this recommendation. In the meantime, we believe the intent behind it clearly indicates that parish councils and local authorities can invest in church buildings under two separate acts, both of which supersede the 1894 Act”.
It has also been suggested that if a parish council is “eligible” and has adopted the power of general competence under s 1 Localism Act 2011, there will be no limit on the amount that it may spend on church repairs. However, the HRBA is aware of two cases in which an auditor told a parish council that the 1894 Act debarred it from giving money to a local church despite the express wish of the council to do so. Apparently, the SLCC raised the issue with the Government and asked for the removal of what the SLCC regards as a prohibition – but, so far as I am aware, nothing has been done.
Are burial grounds a special case?
In advice dated March 2018, Leicestershire and Rutland Association of Local Councils points out that the Local Government Act 1894 “expressly prohibits councils from spending any money on maintaining or improving church property. In practice, this includes the church building itself, the churchyard and the church hall”. As to burial grounds, however, it suggests that subsequent legislation appears to contradict the 1894 Act:
“For example, s.214(6) of the Local Government Act 1972 permits a parish council to contribute towards the expenses incurred by any person in providing or maintaining a cemetery and s.215 of the Local Government Act 1972 permits a parish council to maintain a closed churchyard.”
But though it is widely accepted that a parish council can legally maintain a closed churchyard – and many in fact do so:
“there remains a difference of opinion … over whether a parish council is permitted to maintain or contribute to the maintenance of an open churchyard: the debate being, does s.214(6) of the Local Government Act 1972 override the provisions of the 1894 Act?”
Current guidance from the National Association of Local Councils (NALC) accepts that in the absence of case law and specific clarification from the Government there is no definitive answer to the question as to whether or not a council can legitimately maintain or contribute to the maintenance of an open churchyard. However, the NALC briefing states that the Government’s current view is that there is no need for any further legislation on the point because it believes that the restrictions in the 1894 Act do not override the provisions in the later Acts.
A tentative conclusion
The House of Commons Library’s Briefing Paper of 25 February 2019, Parish and town councils: recent issues, sums up the position as follows at page 18:
“6.2 Parish council funding of churches
An issue arose in the late 2010s regarding the legal power of parish councils to fund repairs to local churches. This is a grey area in the law, with two statutory provisions pointing in opposite directions.
Section 8 of the Local Government Act 1894 provides that parish and town councils cannot give funding to ecclesiastical charities. There is a competing provision in section 137 (3) of the Local Government Act 1972 that allows parish and town councils to give funding to charitable bodies. Awareness that the law is unclear has discouraged many parish councils from providing funding for churches, in case they attract a legal challenge. Councils concerned over the legality of proposed donations should take legal advice.”
Furthermore, as we previously noted, on 2 January 2018 the National Association of Local Councils issued a press release, Taylor Report recommends clarity on parish councils’ power to fund church buildings, which stated, inter alia, that the Report had recommended:
“that the Government clarifies the legal powers of parish and town councils to fund church buildings, a matter SLCC in partnership with NALC has been raising this year with Government officials”.
For what it’s worth, I remain in total agreement with the Taylor Review, the National Association of Local Councils, the Society of Local Council Clerks and (at least by implication) the author of the Commons Library paper: the current law is confused and needs to be clarified.
But I’m still not holding my breath.
HRBA is disappointed that this legal issue is taking so long to resolve. Parish Councils have continuity, democratic legitimacy, fund-raising powers, access to personnel and a vision for place-making rooted in local needs. As the current pandemic eases we will need as many options as possible to help keep historic places of worship at the centre of their community. Clarifying the law in this area would be a major strategic move, freeing up elected representatives to allocate local resources to the most effect.
Indeed. My guess is that if the income of places of worship falls dramatically as a result of COVID-19, one of the first things to be ducked will be routine building inspection and maintenance because “we can always put it off until next year”.
This confusing situation can cause great difficulties at a parochial level. Some PCCs receive funding from their parish council and others are told it’s not legal. Perhaps most frustrated are those PCCs where there has been a change of parish clerk. Invariably the new clerk stops funding where it may have been granted under the predecessor.
This has happened in our parish where we contributed to the upkeep of the open cemetery. There is now huge controversy throughout the village that this funding has stopped!
Above you wrote, “Current guidance from the National Association of Local Councils (NALC) accepts that in the absence of case law and specific clarification from the Government there is no definitive answer to the question as to whether or not a council can legitimately maintain or contribute to the maintenance of an open churchyard.”.
The Government has now responded after several attempts to get them to do so.
Parliamentary Written Question for Ministry of Justice
To ask the Secretary of State for Justice, with reference to section 2.23 of his Department’s guidance entitled Burial Grounds: Guidance for Managers, which states that burial authorities may contribute towards the provision or maintenance of burial grounds in which their inhabitants may be buried, whether burial grounds in 2.23 includes churchyards.
Asked 21 March 2022
Andrew Selous, Second Church Estates Commissioner
Paragraph 2.23 of Burial Grounds: Guidance for Managers refers to section 214 of the Local Government Act 1972. Subsection 214(6) provides that a local authority burial authority may contribute towards the provision or maintenance of any cemetery in which their inhabitants are buried. For the purposes of section 214(6), the definition of “cemetery” (in subsection 214(8)) is “a burial ground or any other place for the interment of the dead (including any part of any such place set aside for the interment of a dead person’s ashes).” This would include a churchyard if it is used as a burial ground.
Answered 29 March 2022
By Tom Pursglove (Conservative, Corby) Parliamentary Under Secretary of State, Ministry of Justice
Thanks, Christopher. That’s really helpful. I would imagine that a parish or town council (or a community council in Wales) is only very rarely “a local authority burial authority”. Though I still believe that the law needs clarifying to put the matter beyond doubt, it’s a very helpful piece of persuasive precedent.
Thank you, Frank. Concerning your ‘imagination’, as a former parish council clerk may I respectfully draw your attention to:
C BURIAL AND CREMATION AUTHORITIES
33.7 The councils of principal councils, parishes and communities are burial and cremation authorities. The parish meetings of English parishes without a parish council (whether separate or common) are burial authorities only.
“Arnold-Baker on Local Council Administration”, R Taylor 12th edn (2020) p.305 with footnotes to Local Government Act 1972 s.214(1) and Sch 26, para 1.
At para. 25.2 it states, “Where a churchyard is open a local council may contribute to its maintenance (LGA 1972 s.241(6))… However, doubt has been expressed as to the use of the power to benefit churches…”
I’ve recently done a survey of a sample of parish and community councils in Hereford Diocese. All but a couple are following NALC’s advice and have ceased contributions to maintain open churchyards.
Aha! I didn’t know that, so thank you very much indeed. (One of the joys of running a blog is that one learns something new almost every day.)
Thank you for your gracious response.
Hi Frank, great site. If a parish council does not manage a cemetery can it be classed as a burial authority? Appreciate it has the powers to be one.
I don’t see in what sense it can be a burial authority if it’s not responsible for burials, but maybe someone more expert than I on burial law may have a view.
Interesting point. If I qualified as an accountant but never practised as an accountant can I be classed as an accountant?
Does the answer lie in the infamous s.214 LGA 1972?
214 Cemeteries and crematoria.
(1) The following authorities, that is to say, the councils of Welsh counties, county boroughs districts, London boroughs, parishes and communities, the Common Council and the parish meetings of parishes having no parish council, whether separate or common, shall be burial authorities for the purposes of, and have the functions given to them by, the following provisions of this section and Schedule 26 to this Act; and—
2) Burial authorities may provide and maintain cemeteries whether in or outside their area.
I note: shall be burial authorities; and, may provide.
Thank you Christopher/ Frank for your speedy replies.
I’ve recently come across another relevant Act that contradicts NALC’s view:
Parish Councils and Burial Authorities (Miscellaneous Provisions) Act 1970. (s amended)
5(2) In this Act “burial authority” means the council of a district, London borough,
parish or community, the Common Council of the City of London, the parish
meeting of a parish having no parish council, whether separate or common or a
joint board established under section 6 of the Public Health Act 1936 or by or
under any local Act to exercise the functions conferred by section 214 of, and
Schedule 26 to the Local Government Act 1972 or by any enactment replaced by
those provisions“burial ground” has the same meaning as in the Open Spaces Act 1906.
The Open Spaces Act 1906 s.20 Definitions …
The expression “burial ground” includes any churchyard, cemetery, or other ground, whether consecrated or not, which has been at any time set apart for the purpose of interment.
Does repair of a historic church organ provided by public subscription form part of the fabric of the church? Is a Parish Council able to assist in funding its repair?
If it’s the Church of England or the Church in Wales you’re talking about, the organ must certainly form part of the fabric of the church because major repairs and alterations to it will require a faculty. Whether or not a parish, town or community council may grant-aid its repair depends on what view one takes of the current law.
That, unfortunately, is precisely the problem caused by the law’s lack of clarity.
My view is that parish councils may only fund items as provided for in legislation. I know of none concerning church organs.
Concerning church tower public clocks there is the Parish Councils Act 1957 s.2. The Hansard extract on the bill’s second reading is instructive:
“Clause 2, dealing with clocks, and Clause 10, [now Local Government Act 1972 s.214(6)] dealing with contributions towards churchyards and other burial grounds, make it possible to support two conspicuous village landmarks which are widely falling into disrepair because the body which usually owns them cannot afford their proper upkeep. Parish councils are responsible also for the maintenance of closed churchyards. They can provide burial grounds, but they cannot yet provide any sort of village clock.”.
In view of the present National Association of Local Councils anti-church stance another extract from Hansard above makes interesting reading:
“The enactment of this Bill is especially desired by the National Association of Parish Councils [now NALC], which has existed for only nine years, and which is a purely voluntary organisation but, nevertheless, represents the great majority of parish councils. I understand that the present membership is about 5,500 parish councils. I would pay tribute to the officers of that Association for the very great help they have given me in drafting the Bill.”
Re organs, FWIW that’s my view as well.
My question is similar to the above. We are in the process of re-ordering our festival church to provide community facilities and a space which is much wanted by the community. The Parish Council are fully behind the need for a community space as there is none in our area. Indeed the parish council partnered with the church in an extensive community survey to find out whether people wanted a community space in our building. The result was a categorical yes and a desire on all sides to provide one. The idea, once the facility is built, is that the Parish Council will raise its precept (£20 per household) and then provide annual support to offset running costs of the facility. We live in a small rural community (250 households) and such annual support is needed. Any monies would be kept separate from general church funds as the community facility would be run by a friends organisation with its own constitution and bank account.
My question is whether such an arrangement (annual precept funding) would be legal and whether the provisions of the 1894 act, S137 or the 2011 localism act prevent this or actually assist? Are there any precedents of others doing similar?
My own view is that it should be entirely legal and proper, if a parish council, after consulting its constituents by survey or referendum, decide to make give annual precept support.
This is a well timed question. The House of Lords is presently considering the Levelling-up and Regeneration Bill. Amendments have been tabled to clarify the position of parish council grants to churches. On 15 March the first one was not moved but another is forthcoming.
The Historic Religious Buildings Alliance website carries full details and links: https://www.hrballiance.org.uk/consultations-2/consultations/local-councils/
Concerning s.137 you may find my recent question to the Minister headed ‘Local Government Act 1972 – local authority grants for the maintenance or repair of adaptations of churches’ and relating to the Bill of interest: https://bit.ly/3mCGNZ9