The Church of England’s General Synod to be held at Church House, Westminster, 8 to 10 February 2020, will consider amendments to the Faculty Jurisdiction Rules 2015 SI 2015/1568, as amended by the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 and SI 2019/1184. These will be considered on the morning of Wednesday 9 February 2022.

Procedure

The Chair of the Rule Committee (the Rt Worshipful Morag Ellis QC, Dean of the Arches and Auditor) (ex officio) is to move: “That the Faculty Jurisdiction (Amendment) Rules 2022 be approved.” The Business Committee has determined in accordance with SO 70(1) that the Rules are to be considered on the One Motion Procedure under SO 72.2. Amendments to the Rules are permissible. Any member who wishes to give notice of an amendment must do so in accordance with SO 13 not later than 5.30 p.m. on Monday 7th February 2022*.

Amendments to the Faculty Jurisdiction Rules

The relevant documents are: Faculty Jurisdiction Amendment Rules, GS 2245 and Faculty Jurisdiction Amendment Rules Explanatory Notes, GS 2245 X. Amendments are proposed in three main areas: the requirement to have due regard to net zero guidance; consultations before starting faculty proceedings; and changes to Lists A and B, in addition to some minor amendments, and transitional provisions.

Due regard to net zero guidance

The proposed Rule 2 makes provision concerning guidance that the CBC is to issue on reducing carbon emissions under existing statutory powers. Section 55 of the Dioceses, Pastoral and Mission Measure 2007 empowers the CBC to issue such guidance, and should that guidance receive synodical (or governmental) approval it will then have statutory authority. No timescale for the guidance is indicated, but the FJ Amendment Measure indicates that it will come into force in 1 July 2022 for which the proposed Rule 6 lists the transitional provisions.

As we have noted before, even without direct approval of such guidance by Parliament/Synod, under the Dioceses, Mission and Pastoral Measure 2007, 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.

Importantly, the proposed Rule 2.2 defines ““net zero guidance” as meaning: “guidance issued by the Church Buildings Council under section 55 of the Dioceses, Pastoral and Mission Measure 2007(c) on reducing carbon emissions”. This is used in:

• rule 3.3 (undertaking List B matters without a faculty)
• rule 4.2 (documents etc. to be submitted to Diocesan Advisory Committee);
• rule 4.9 (notification of Diocesan Advisory Committee’s final advice);
• rule 5.5 (documents to accompany faculty petition), and in
• Schedule 1 (matters which may be undertaken without a faculty); and
• Schedule 3, in Form 2 (notification of Diocesan Advisory Committee’s final advice).

The meaning of “having due regard” is explained in the Church of England’s Duty to “have due regard” to House of Bishops safeguarding guidance:

“What does ‘due regard’ mean?
Where legislation – whether an Act of Parliament or a Church Measure – imposes a duty on a person to “have due regard” to guidance of this sort, the law understands that duty in a particular way. The legal duty to have due regard means that the person to whom the guidance is directed is not free to follow the guidance or not as he or she chooses. As a matter of law, the guidance should be given great weight and must be followed unless there are ‘cogent reasons’ for not doing so (see below).

What is meant by ‘cogent reasons’?
‘Cogent reasons’ are reasons that are clear, logical and convincing. It will be very rare indeed for there to be cogent reasons for not following House of Bishops guidance [on safeguarding]. Cogent reasons are likely to arise only where the guidance does not contemplate a particular, unusual situation arising so that it becomes necessary to take a different approach from that set out in the guidance in order to meet the particular circumstances of the case.”

This reasoning is equally applicable to “net zero guidance”. The extent to which adherence to CBC guidance will be considered in the Duffield balancing exercise in assessing public benefit is a debatable point, given that the Church of England’s carbon emissions are low, even on a national basis.

To date, considerations of the consistory courts on heating issues in relation to the “net zero” targets from 2017 to 2021 have been summarized in our posts on 24 May 2021, 9 June 2021, and 16 September 2021.

Consultation before starting faculty proceedings

The Explanatory Notes states that under Rule 3, the amendments

“make minor drafting improvements by providing a foundation for the reference in Form 2 to consultation with bodies or persons other than those specified. In stating expressly that an intending applicant can consult other bodies or persons in addition to those which must be consulted, the amendments make express what is already the case by necessary implication”.

“The amenity societies have a single electronic portal for consultations under rule 4.7. It allows each society secretary to see every consultation request, and some societies have made unsolicited responses to proposals where they were not an intended consultee. Some DAC secretaries are concerned that, if an amenity society sends an unsolicited response within the statutory 42-day period, the DAC must wait for that period to expire before giving its final advice. The amendment provides that a representation received from a body which has not been told that it is being consulted can be ignored (but need not be)”.

Changes to Lists A and B

Rule 4 introduces the Schedule, which amends Lists A and B. The Schedule is divided into three Parts: Part 1 (paragraph 1) provides technical introductory material; Part 2 ( paras 2 to 12) gives effect to recommendations made by the Net-Zero Carbon Faculty Working Group (paras 1 to 4 supra); and Part 3 (paras 13 to 15) makes a “handful of minor, miscellaneous changes”.

Some of the more significant proposed changes to Lists A and B in terms of carbon emissions are:

• Paragraph 5 amends Lists A and B to include provision about the replacement of boilers, but not the installation of heat pumps;

In addition, changes to thermal efficiency measures are included in Paragraph 2 which amends List A to include the provision for draught proofing an external door or window, and Paragraph 3 amends List A to include provision for the addition of pipework insulation in a boiler room and the ancillary service areas.

• Paragraph 4 amends List B to permit the replacement of lamps with low-energy ones. Paragraph 4(1) makes a consequential amendment to List A.
• Paragraph 6(1) to (3) amends Lists A and B to require that, where roof replacement work is carried out on a church or on a church hall or other building, consideration must be given to installing roof insulation;
• Paragraph 10 amends List B to include provision for the installation of photovoltaic panels on a church, or on a church hall or similar building, which is not listed or in a conservation area;
• Paragraph 11 amends List B to include provision for the installation of electric
  pew heaters. The provision is limited to pews made on or after 1850 (a date regarded as a suitable marker for the age of mass-production and the mechanisation of parts of pews). That limitation is itself subject to an exclusion for pews made after 1850 which are of historic interest. 

Other provisions include:

• Paragraph 9(1) to (4) makes various amendments to Lists A and B to permit the installation of electric vehicle charging points. The conditions to which such an installation are subject correspond to those which apply in the secular law under the General Permitted Development Order.
• Paragraph 15 amends List B to remove the express reference to “louvres” – a terms that has given rise to confusion –  and refers instead to sound control measures in general.
• Paragraph 7(1) amends List A to provide that changes to kneelers, hassocks, pew runners or cushions are permitted so long as they do not result in a major change to the overall appearance of the church.
• Paragraph 7(2) amends List A to permit carpet runners between pews.
• Paragraph 13 amends Lists A and B to insert express provision for the connection of an earth mat to a lightning conductor.
• Paragraph 14 amends List A to include provision for the like-for-like replacement of a wrought iron clapper shaft.

Comment

The outline of, and rationale underpinning the proposed amendments, was described by the Rt Worshipful Morag Ellis QC, Dean of the Arches and Auditor in her lecture “Clean and green – law and the carbon neutral Church” which was delivered to the Ecclesiastical Law Society on 15 September 2021, repeated on 4 November 2021, with some modifications. The proposals before General Synod on Wednesday February 2022 should therefore have come as no surprise to those following the issues, and the implications of the General Synod vote for “net zero by 2030” on 20 February 2020.

* Church of England General Synod Standing Orders October (2015 Edition) updated September 2020, GS 2010D.