The requirement to have “due regard” to statutory guidance is an important obligation placed upon the various actors in both consistory court proceedings and tribunals considering the Clergy Discipline Measure. This post considers guidance produced under the Dioceses, Pastoral and Mission Measure 2007. Part II addresses the authority of guidance; the application of guidance and sanctions; and Clergy Discipline and Safeguarding.
Overview
The meaning of these terms is well-established in other branches of UK law, although this has not always been the case in the Church of England [1]. However, guidance has now been issued on the meaning of “due regard” with specific reference to safeguarding, infra, much of which is generally applicable. The full document is available here and our summary is here, and reflects the leading judgment of Lord Bingham (at 21) and the comments of Lord Hope (at 49) in Regina (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148.
In environmental law, it has long been acknowledged that guidance provided by government departments can take different forms, each having specific legal authority [2]. “Guidance” within ecclesiastical law follows a similar hierarchy, although there are differences between the legislation underpinning guidance on the Clergy Discipline Measure and Safeguarding issues, and that relating to issues considered by the consistory courts.
In Re All Saints West Burnley [2017] ECC Bla 6 Bullimore Ch. questioned the description “statutory guidance” in relation to CBC Guidance Note: Seating, (promulgated 2013, minor updates 2017),
“[53]. …The phrase ‘statutory guidance’ does not mean simply that it emanates from a body set up under a Statute or Measure. If it meant only that it would be pointless to state it. It means much more than that, and if it did not, then the footnote would appear to be without foundation under the Measure”.
Although there have been no subsequent changes in the guidance on seating, “due regard” provisions have been introduced in relation to “net zero” and “contested heritage” within the Faculty Jurisdiction Rules 2015 (as amended), and these are discussed below.
Application of guidance and sanctions
There is an important difference between the context of “due regard” in consistory court determinations, and in those of a CDM Tribunal: the former relates to the court’s prospective consideration on the granting of a faculty petition, and as such, there is no prescribed penalty for not meeting this criterion: the Chancellor has the option of granting the petition with or without conditions, or rejecting it. The various actors involved in the process all have a duty to have due regard to the guidance, and the Chancellor determines whether the underlying legislative requirements have been satisfied. In the case of the Clergy Discipline Measure however, the Tribunal takes a retrospective view of the alleged offence.
Dioceses, Pastoral and Mission Measure 2007
Provision of guidance
Section 55 of the Dioceses, Pastoral and Mission Measure 2007 on “functions of Council in relation to churches, etc.” is of particular importance to two aspects concerning the provision of guidance:
- the production of guidance the the Church Buildings Council (CBC), in general (such as for seating) and more specifically for “net zero” guidance and “contested heritage“. Under section 1(d) of the 2007 Measure, it is the duty of the CBC:
“to promote, in consultation with such other persons and organisations as it thinks fit, by means of guidance or otherwise, standards of good practice in relation to the use, care, conservation, repair, planning, design and development of churches”.
- it also requires the CBC to consider the consultation by and requests for advice from judges and registrars of the ecclesiastical courts and from Diocesan Advisory Committees in relation to applications or possible applications for the grant of a faculty, any other matter referred to in section 7(1)(a), (c) or (d) Ecclesiastical Jurisdiction and Care of Churches Measure 2018 and any matter to which any of sections 56, 58(1) to (6) and (9), 60, 62 to 64, 68 to 75 and 77 to 79 of that Measure relates and, to the extent that the Council thinks appropriate, respond to such requests or consultation;
This provision is mirrored by the mandatory consultation with the Church Buildings Council in S9.6 Faculty Jurisdiction Rules 2015 under which a diocesan Chancellor must seek the advice of the Church Buildings Council on the proposals that fall within paragraph (1) unless the chancellor is satisfied that there has already been adequate consultation with the CBC and the Council’s advice is available to the court.
In other cases, there is 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.
Faculty Jurisdiction Rules 2015 (as amended)
As noted above, amendments to the Faculty Jurisdiction Rules 2015 have been the vehicle for introducing further consideration by the consistory court to “net zero” issues and “contested heritage”.
The Faculty Jurisdiction (Amendment) Rules 2022, SI 2022/155 introduce a requirement to have due regard to “net zero guidance” issued by the CBC under section 55 of the 2007 Measure. Persons proposing to undertake certain works must, as part of the procedure, provide an explanation of how they have had due regard to guidance issued on reducing carbon emissions (rule 2).
In addition, the DAC is required to include a statement of— (a) whether, in its opinion, the explanation under rule 4.2(2)(b) is adequate, and (b) if its opinion is that the explanation is not adequate, its reasons for that opinion.
Rule 4 introduces the Schedule which makes amendments to Lists A and B in Schedule 1 to the 2015 Rules. In particular, the amendments in Part 2 of the Schedule are concerned with promoting environmental protection (for example, fitting boilers which do not use fossil fuels and installing charging points for electric vehicles).
These rules came into force on 1 July 2022. Links to most consistory court judgments relating to net zero issues are listed in our Index; and currently only four 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; Re St. Michael Wandsworth Common [2023] ECC Swk 2; Re St. Mark Haydock [2023] ECC Liv 2; and Re All Saints Scotby [2023] ECC Car 3.
In addition to The practical path to net zero for churches, the CBC has produced are range of guidance [3]:
Rule 2 of the Faculty Jurisdiction (Amendment) Rules 2023, SI 2023/866 provides that in FJR 2015 rule 4.2 (documents etc. to be submitted to Diocesan Advisory Committee), 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 CBC.
In rule 4.9 FJR (notification of advice), the DAC advice must include a statement of—(a)whether, in its opinion, the explanation under rule 4.2(2)(ba) is adequate, and (b) if its opinion is that the explanation is not adequate, its reasons for that opinion. (Rule 2)
In rule 5.5 FJR (documents to accompany faculty petition), an explanation of how the petitioner, in formulating the proposals, has had due regard to guidance issued for the purposes of rule 4.2(2)(ba) by the Church Buildings Council under section 55 of the Dioceses, Pastoral and Mission Measure 2007, must be submitted with the petition. (Rule 2)
In rule 7.3 FJR 2015 (reasons for grant of faculty or dismissal of petition), reasons under paragraphs (1) or (2) must identify any relevant guidance issued by the Church Buildings Council under section 55 of the Dioceses, Pastoral and Mission Measure 2007 and state how the chancellor has taken it into account in determining the petition. (Rule 3).
Except for rule 4(1)&(2), these rules come into force on 1January 2024.[4]
The CBC has produced two versions of its guidance:
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The short guidance provides an introduction to the issues raised by items of contested heritage in cathedrals and church buildings, and approaches to addressing these issues.
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The long guidance contains a more thorough discussion of these issues and considers the possible options for change in more detail. It should be consulted by any church or cathedral considering taking action to address one or more items of contested heritage in their building.
The Third Report of the Commission for Racial Justice recommended “the Church’s Statutory Guidance on Contested Heritage should be strengthened to reflect the ongoing impact of past horrors, which cannot be seen as safely ‘in the past’ because they continue to have an impact in the present as an impediment to mission”. The same report notes:
“The Cathedral & Church Buildings Division is reviewing the national guidance on contested heritage, first published in June 2021. This process has included a survey and consultations with those who have been involved in contested heritage cases including Jesus College Cambridge, Dorchester St Peter, and Redcliffe St Mary”.
Notes
[1]. See pages 95 & 96 of the transcript of IICSA hearing on Church of England, day7, 13 March 2018 and page 206, Independent Inquiry into Child Sexual Abuse (IICSA) Report.
[2]. i.e. guidance which has statutory authority; guidance issued under statutory authority; guidance with no statutory basis; other sectoral guidance with no statutory basis. D N Pocklington, The Law of Waste Management – 2nd Edition’, Sweet & Maxwell, 2011, pp 136.
[3] This guidance includes:
| Heating Principles | Electric Vehicle Charging |
| Heating Checklist | Solar Panel And Faculty |
| Heating Options Appraisal | Biomass |
| Floodlighting | Lighting |
[4]. Rule 4(1) and (2) comes into force immediately after the commencement of the amendments made to section 78 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 by the Measure resulting from the draft Church of England (Miscellaneous Provisions) Measure given First Consideration by the General Synod on 11th July 2022.
Last updated: 19 August 2023 at 15:16.
Thank you very much for picking up this topic, which continues to exercise me.
As the arboricultural adviser to my DAC I am frequently engaged with List B applications for tree work. The FJR allows certain work to trees under both List A and B on condition that “Regard is had to the guidance issued by the Church Buildings Council as to the planting, felling, lopping and topping of trees in churchyards.”
This seems to me to make it “guidance which has statutory authority” (your footnote 2). The terminology may not be the crucial issue, but as the DAC adviser I take a dim view of any application that ignores the CBC guidance on trees and require applicants to provide “‘cogent reasons’ for not [following the guidance].”
As the new NZC officer for my diocese as well I am now looking at applications which should have given “great weight” to the NZC guidance. This seems in many ways less clear as the CBC guidance is often rather less specific about what applicants should do. This is partly as the guidance was often written with a more general purpose in mind and before it was turned into ‘statutory guidance’.
Do you have any comments on this?
Thanks for your comments Nigel. I am currently drafting Part II of the post, which may provide some answers, although the primary focus is safeguarding and climate change. However, you may find Re All Saints West Burnley [2017] ECC Bla 6 is worth reading as Bullimore Ch. provides a good analysis of CBC guidance.
Regards, DavidP
Thank you, David.
I have looked at Re All Saints West Burnley and the Chancellor’s comments on the status of the CBC guidance. It seems to me that the general CBC guidance is never more than that – guidance – and it has no statutory force if having been ‘regarded’. When I was on the CBC we were clear that our guidance documents had that relatively lowly status equivalent to the specific guidance that it might offer on a case at issue (i.e. “guidance issued under statutory authority” in that it was produced by a statutory body), apart, that is, from the tree guidance, which, at that time, was the only guidance to which parties had to have ‘regard’ under the FJR at that time.
Now, of course, added to the guidance to which ‘regard’ or ‘due regard’ (does the ‘due’ diminish the force of regard, as it would in ordinary English, or enhance its force, as it appears to do in safeguarding?) has to be given are the NZC and Contested Heritage documents.
It seems to me that the CBC general guidance is to be noted, but its ‘regarded’ guidance is actually to be followed unless cogent reasons can be given for not doing so.
Again, over to you.
Nigel
P.S. Was your post incomplete as you ended, “The latter being an area in which”?
Thanks. Re the last line, the comment related to some earlier thoughts which were out of my field of view when I pressed “Approve and Reply”. They have now been removed! dp
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