Background

All Saints Spring Park Parochial Church Council v Church Commissioners [2024] UKPC 23 was an appeal by the PCC and the incumbent of All Saints Spring Park under the Mission and Pastoral Measure 2011 to the Judicial Committee of the Privy Council against a scheme made by the Church Commissioners under the Measure. An episcopal visitation in 2016 had concluded that the parish was not financially viable [5], and the Commissioners made a scheme under the Measure to dissolve the parish and divide its area between the neighbouring parishes of St John Shirley and St George Shirley. The incumbent, Revd Yvonne Clarke – who was the first black woman to be ordained deacon in the Church of England and one of the first women to be ordained priest [3] – and the Parochial Church Council had made written representations on the proposal, but the Bishop of Southwark duly approved the scheme in June 2020.

The principal legal question before the Board was whether the Commissioners were a public authority for the purposes of the Human Rights Act 1998. In addition, the Commissioners raised a question as to whether the Board had jurisdiction to hear the appeal [2].

The arguments

The appellants argued, in brief:

• that the draft scheme, if made, would breach section 6 of the Human Rights Act by infringing their Convention rights under Article 14 ECHR read with Articles 8 and/or 9;
• that the Bishop of Southwark and/or the Commissioners breached the public sector equality duty under section 149(2) of the Equality Act 2010; and
• that the Commissioners made a material error of judgment in failing to conclude that All Saints Spring Park, as a UK minority ethnic-led church with primarily UK minority ethnic congregation membership, provided an irreplaceable mission to UK minority ethnic people in the Spring Park/Shirley area [31].

It was argued on their behalf that the Commissioners were a public authority under section 6 of the Human Rights Act. They were a statutory corporation established by the Church Commissioners Measure 1947, a number of public officeholders were members ex officiis of the Commissioners, and the Commissioners were required to lay an annual report and accounts before Parliament. It was also argued that the Commissioners performed public functions, exercised statutory powers under the 2011 Measure, and were democratically accountable to Parliament through the Second Church Estates Commissioner, a Member of Parliament. They dealt with the Church’s property and addressed financial matters that were administrative rather than religious functions [33].

The draft scheme had been within the ambit of Articles 8 and 9 ECHR, and the abolition of the parish was a breach of Article 14 by discriminating indirectly against minority ethnic people. It was also argued that when exercising statutory functions under the 2011 Measure, the Commissioners and the Diocesan Mission and Pastoral Committee were exercising public functions under section 149(2) of the Equality Act 2010 and that there had been inadequate consideration of the public sector equality duty under that provision. The appeal was on the merits of the decision, and the Commissioners had not had adequate regard to the unique and successful mission of All Saints Spring Park to the UK minority ethnic community and the discriminatory effect of the draft scheme on minority ethnic congregants and residents [33].

For the Commissioners, it was argued that they were not a public authority under section 6 Human Rights Act and, therefore, that neither the Commissioners nor the Diocesan Mission and Pastoral Committee were subject to the public sector equality duty under section 149(2) Equality Act 2010. The purpose of section 6(1) Human Rights Act was to ensure that persons for whom the United Kingdom was answerable before the Strasbourg Court should be subject to a duty in domestic law not to act incompatibly with Convention rights, and the Commissioners were not a body which was governmental in nature and did not fall within that definition [34].

 Further, if the Commissioners were a governmental body, they could not be a victim under the jurisprudence of the Strasbourg Court. They were not a “core” public authority all of whose functions were of a public nature, nor were they a “hybrid public authority” under section 6(3) Human Rights Act certain of whose functions were functions of a public nature. Regard had to be had to the specific function in question, which in this instance was the making of a pastoral scheme. The role of a pastoral scheme was to make better provision for the cure of souls and they were not governmental functions [35 & 36].

In any event, the Commissioners had not acted discriminatorily, and neither they nor the Diocesan Mission and Pastoral Committee had failed to consider the impact of the parish’s abolition on the UK minority ethnic population in the community [37].

The judgment

The Board concluded that neither the PCC nor the incumbent had standing to pursue the appeal [55 & 65]. While the PCC had made timely representations concerning the initial proposal, its written representations regarding the draft scheme were well out of time [56, [57]. The incumbent’s notice of intention to appeal had been defective and she, too, lacked standing [61 & 65].

Although the appeal failed for lack of jurisdiction, “as a courtesy to the congregants who listened so patiently and courteously to the legal debate in the appeal” the Board nevertheless recorded its views on the merits [66].

The Board was satisfied that the Commissioners were not a public authority under section 6 Human Rights Act [67]: neither a core public authority exercising “functions which are broadly governmental and thus functions of a public nature” nor “a hybrid public authority, some of whose functions are of a public nature” [69]. In any event, the decision to make the scheme had not involved unlawful discrimination nor any failure to take into account the needs of minority ethnic communities [70].

Secondly, because the Commissioners were not a public authority, the public sector equality duty did not apply to them [71].

Thirdly, the Board was of the view that the Commissioners had made a compelling case in support of the scheme, given the parish’s financial predicament and governance problems and the ability of the parishes of St John Shirley and St George Shirley to serve the community of Shirley, including the UK minority ethnic community. In short: “If it had had jurisdiction, the Board would not have allowed the appeal” [75]. Appeal dismissed.