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.
- Faculty Jurisdiction (Amendment) Rules 2023 (1) (GS 2310)
- Faculty Jurisdiction (Am) Rules – Explanatory Notes (1) (GS 2310X)
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,  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’” .
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  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  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.
“…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.”