Contested heritage: amendments to faculty jurisdiction rules

General Synod of the Church of England General Synod will meet in York on 7-11 July 2023, and included in the papers is an amendment to the Faculty Jurisdiction Rules. This supplements the Faculty Jurisdiction Rules 2015 with provisions related to “contested heritage”.

The Faculty Jurisdiction (Amendment) Rules 2023 are “for approval” and will be debated on Tuesday 11 June. These amendments to the Faculty Jurisdiction Rules 2015 in their present form will come into force on 1st January 2024, subject to transitional provisions, rule 5.

Note: Pages 4 to 33 of the Explanatory Notes include the marked-up text of the Faculty Jurisdiction (Amendment) Rules 2022, which predates the proposed amendments on contested heritage.


On 23 March 2022, HH Judge David Hodge handed down his judgment on Re The Rustat Memorial, Jesus College Cambridge[2022] ECC Ely 2 in which he refused to grant a faculty to the College for the removal of the memorial to Tobias Rustat, a significant benefactor of the college whose links with the slave trade were central to the case; the judgment is summarized in our posts Rustat memorial: judgment and Re the Rustat Memorial: a case note. Following the judgment and om 12 April 2022, the Archbishop of Canterbury issued a statement which said:

“…I have questioned previously why it is so difficult to move the Rustat memorial in Jesus College chapel – which causes such pain and distress to people whose ancestors were sold into slavery – to a place where it can be understood in context. I stand by those comments…I have no doubt that the law was followed in this instance, and that the Church of England’s contested heritage guidance was used. But if we are content with a situation where people of colour are excluded from places of worship because of the pain caused by such memorials, then clearly we have a lot further to go in our journey towards racial justice”.

The Archbishops’ Racial Justice Commission (“ARJC”) issued its First Biannual Report – Spring 22 on 28 June 2022. The Explanatory Note makes particular reference to pp. 14, 15 and 21-24 of the ACRJ First Biannual Report – Spring 22. In our review of these sections of the Report, we noted that Re the Rustat Memorial, Jesus College, Cambridge was the only case considered in detail, although at page 24 the Report said [emphasis added]:

“We are aware of one other case involving a monument which has given cause for concern where [judgment] is still pending at the time of writing. We make no comment on that save to say that its outcome is unlikely, given the facts known to us, to change our view of what needs to be done as a matter of urgency in the aftermath of the Rustat case”.

It was evident at the time that this referred to the John Gordon memorial at St Peter, Holy Trinity and All Saints in Dorchester, the judgment of which was handed down a few weeks later on 25 July 2022. However, there were other earlier instances of contested heritage, both within the consistory courts and elsewhere in the Church of England, which pre-dated Jesus College, but were not included in the Report.

The Explanatory Note states that after discussions with the ARJC, the Dean of the Arches and Auditor convened the Rule Committee to consider amending the Faculty Jurisdiction Rules to address the issue of “what is commonly referred to as ‘contested heritage’” [1].

CBC Guidance

The Explanatory Notes states than following engagement with the ARJC, the Church Buildings Council (“CBC”) established a specialised committee with a diverse membership to prepare drafts of guidance on contested heritage. The guidance – Contested Heritage in Cathedral and Churches – was issued by the CBC under the statutory authority afforded by s55  Dioceses, Pastoral and Mission Measure 2007 and s3(3)(a) Care of Cathedrals Measure 2011; A shortened form of the guidance is available here.

Faculty Jurisdiction Rules

Church House Legal Office has prepared an informal Keeling Schedule of the Faculty Jurisdiction Rules as they had effect from 1 July 2022, incorporating the amendments made by the Faculty Jurisdiction (Amendment) Rules 2022; this is available here.

The important elements to the proposed changes are shown in the relevant part of the Faculty Jurisdiction (Amendment) Rules 2023 (1) (GS 2310), which is reproduced here. In summary:

  • Rule 2 provides that persons proposing the movement, removal or alteration of a statue, plaque, memorial, monument or other article because it is considered to conflict with the role of a church as a local centre of worship and mission must, as part of the procedure, provide an explanation of how they have had due regard [2] to guidance issued by the Church Buildings Council.
  • Rule 3 provides that in giving reasons for granting or refusing a faculty, the chancellor must state how any relevant guidance issued by the Church Buildings Council [3] has been taken into account.


Although not included in the Explanatory Note to the draft order, page 24 of the ACRJ Report recommends that the Church of England should “ensure that all its judges receive diversity training at least equivalent to that now required as a matter of course in the civil and criminal courts in the secular system…”.

This aspect of judicial training is addressed in Clause 10 of the Church of England (Miscellaneous Provisions) Measure (GS 2272B) which amends the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 to give the Dean of the Arches and Auditor power to make regulations setting out training requirements to be met by ecclesiastical judges. This will be discussed by General Synod on Monday 10 July.


[1] The Second Biannual Racial Justice Report of the ACRJ was released on 23 February 2023, and in relation to Process and Engagement stated:

“…In October, the Dean of Arches provided a very comprehensive overview on the Consistory Court system and William Nye, Secretary General to the Archbishops’ Council, gave an update on resourcing for the Racial Justice Unit, and an overview of progress on From Lament to Action…In addition the Commission has taken receipt of a number of representations since its first report. Most notably it has received:

  • A detailed paper by the Church Buildings Council and the Cathedrals Fabric Commission for England;
  • Representations from the Master of Jesus College, Cambridge, about reflections on the Rustat case; and
  • A letter from the Chair of the Ecclesiastical Judges Association in response to the Commission’s First Report.”

[2] On the meaning of due regard, see: “Due regard” to safeguarding guidance, (27 February 2020); and “Due regard” for the specialist and generalist, (9 March 2020).

[3] On the legal status of the CBC Guidance, the important issue is the mandatory consultation with the Church Buildings Council under rule 9.6 Faculty Jurisdiction Rules 2015.

Cite this article as: David Pocklington, "Contested heritage: amendments to faculty jurisdiction rules" in Law & Religion UK, 3 July 2023,

8 thoughts on “Contested heritage: amendments to faculty jurisdiction rules

  1. Pingback: General Synod – previews of business | Thinking Anglicans

  2. Has the guidance to be issued by the Church Buildings Council which is referred to been published? It seems not and I do not understand how Synod members can vote on something they have not seen, and which may be changed from time to time? I understand the desire to “do something” about contested heritage, and this is something, so will they vote for it on that basis? I have read “Contested Heritage in Cathedrals and Churches” (2021) which sets out the framework which Consistory Courts already follow, but it does not seem to provide a clear steer either way, so if the new guidance is the same it will not add much. They favoured a “balanced and nuanced approach” (p.21) which could be called “sitting on the fence.” This amendment would not mean that the Rustat case would necessarily have been decided differently, and it will not make any difference to a case already decided.

    • The way I read the documents, the CBC guidance referred to is the existing one, although the provisions requiring “due regard” to be paid to them would also apply to subsequent guidance.

      Since CBC Guidance is not laid before General Synod or the Westminster Parliament, referring to it as “Statutory Guidance” is only partially correct. It is certainly issued under the statutory powers of the CBC, although it is other legal instruments which impose mandatory requirements on chancellors &c to have “due regard” to them.

  3. Your link to your 2019 post on the status of CBC guidance seems dated to me. The 2022 Faculty Jurisdiction Rules para 2 applicants, DACs and Chancellors all have to give ‘due regard’ to the CBC’s NZC guidance.
    Does failure to give such regard lead to the threat of disciplinary action that failing to give due regard to safeguarding advice does? I presume not, but what legal distinction is involved in this diminution of regard? Does it lie in ‘due’, which qualifies ‘regard’, so that the level of regard to be paid to a guidance should be assessed at different levels appropriate to what is due in any particular case? And, if so, where is the guidance on how to assess what level of regard is due?
    This may seem arcane, but as my diocese’s NZC officer I would like to know how much of a whip I can crack?

    • Thanks for your comment Nigel.

      Underpinning my comment is whether the guidance issued by the CBC is “guidance with statutory authority” or “guidance issued under statutory authority”. CBC guidance on specific issues appears to fall into the latter category, and whilst these do not per se have statutory authority, they do impose legal obligations on those required to “have due regard” through other statutory provisions. The point of the comment is regardless of the legal niceties of how one considers the CBC guidance, a number of actors within the Church are required to have due regard to it.

      The term “have due regard” caused a certain degree of confusion during the IICSA hearings on safeguarding, and the Church of England issued Duty to “have due regard” to House of Bishops safeguarding guidance, which we reviewed here.

      The CofE Guidance states that “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”.

      The principles are the same in relation to other provisions to which one must have due regard to, such as the achievement of “net zero” emissions. Whilst the DAC or others may have a view on whether the criterion has been achieved in relation to a specific piece of guidance, the ultimate arbiter will the consistory court.


      • Thank you for the clarification and for explaining the force of ‘due regard’ in relation to NZC. If I summarise correctly, it is for each consistory court to decide if due regard has been had and the maximum likely penalty will be a refusal of a faculty application and not proceedings under CDM (as with safeguarding).

        • Unlike CDM Tribunals whose determination is based upon a retrospective consideration of the conduct of the priest and how this may then be taken forward, determinations of the consistory courts are, in most cases, prospective in nature and whether the petition before them should be granted or not.

          The “due regard” requirement is treated differently in each case. With regard to safeguarding, the “due regard” element would fall within para. 8 of the CDM, “(aa) failing to comply with a requirement imposed by the code under S5A Safeguarding and Clergy Discipline Measure 2016”. Failure to address this criterion might result in disciplinary proceedings under the Measure.

          With regard to net zero requirement, the Faculty Jurisdiction Rules 2015 as amended require various bodies to demonstrate that the net zero guidance (that is, guidance issued by the Church Buildings Council under section 55 of the Dioceses, Pastoral and Mission Measure 2007 on reducing carbon emissions) has been addressed. However, there is no associated sanction since it is the role of the consistory court to assess whether this criterion has been considered. The court will either refuse the petition, grant is, or grant is subject to certain conditions.

          Links to most consistory court judgments relating to net zero issues are listed in our Index; to date, only two judgments have been handed down following the revision of the Faculty Jurisdiction Rules in relation to net zero issues: Re St Saviour Croydon [2022] ECC Swk 5 and Re St. Michael Wandsworth Common [2023] ECC Swk 2.

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