Mark Hill KC and Simon Lee: State, Churches and Chancel Repairs – Twenty Years On

26 June, 2023

Twenty years ago today, on 26 June 2003, each of the five Law Lords in Aston Cantlow v Wallbank [2004] 1 AC 546 gave separate, detailed opinions on a matter at the cusp of public law and private law. 

Mark Hill KC and Simon Lee: State, Churches and Chancel Repairs – Twenty Years On

26 June, 2023

Twenty years ago today, on 26 June 2003, each of the five Law Lords in Aston Cantlow v Wallbank [2004] 1 AC 546 gave separate, detailed opinions on a matter at the cusp of public law and private law. 

Was the Parochial Church Council (PCC) of a beautiful parish church in Warwickshire responsible for the cost of necessary repairs to its fabric, or were the owners of a neighbouring farm subject to chancel repair liability? The church of St John the Baptist, Aston Cantlow, some three miles outside Stratford-upon-Avon, dated from Saxon times. In the first Elizabethan era, it is where William Shakespeare’s parents were married. In the second Elizabethan era, it attracted a judicial inquiry into the very nature of the Church of England.

During the course of the litigation, the Human Rights Act 1998 came into force on 2 October 2000. It had received the Royal Assent on 9 November 1998. But did it apply to the litigation? If so, was the PCC a ‘public authority’? Did the Church of England even exist as a legal entity?

The Wallbanks had inherited Glebe Farm from Mrs Wallbank’s father in 1986. Her parents had bought the property in 1970. The Wallbanks’ wedding had taken place in the church. They were surprised in 1990 to receive a notice from the PCC, requiring them to pay for repairs to the church. That liability had come with the transfer of land to their property in 1743. The quid pro quo was that the owners became ‘lay rectors’ with the responsibility to pay for the upkeep of the chancel. Many had assumed chancel repair liability to have fallen into desuetude. The Wallbanks lost the case in the House of Lords and eventually sold the farm at auction for £850,000, to cover £230,000, being the cost of those repairs, legal fees of £250,000 and the buying out of the chancel repair liability for £37,000.

All over the country, this obsolete liability suddenly revived. PCCs were accused of being un-Christian and bad neighbours. Many were reluctant to pursue the matter but told they had a duty, as charity trustees, to do so and would be denied financial support if they had not first sought to enforce any chancel repair liability. The result and notoriety of this case changed conveyancing practice and compelled insurance for purchasers of properties close to churches. 

The case proceeded on the basis of one significant concession, and one judicial assumption. The Wallbanks conceded that they would be liable, were it not for the Human Rights Act. They alleged that chancel repair liability contravened article 1 of the First Protocol of the ECHR (peaceful enjoyment of possessions). The judges in the Court of Appeal proceeded on the basis that the Human Rights Act was in force. Neither of these was obvious. In combination, however, they led to a case which showed yet again the folly of legislators ignoring Law Commission recommendations. As Lord Nicholls observed, "The anachronistic, even capricious, nature of this ancient liability was recognised some years ago by the Law Commission: Property Law: Liability for Chancel Repairs (1985) Law Com No 152. The Commission said ‘this relic of the past’ is ‘no longer acceptable’. The Commission recommended its phased abolition."

Parliament has continued to fail to implement that recommendation, despite the best efforts in the House of Lords by Lord Avebury in introducing Private Members’ Bills. Governments have consistently said that they have no plans to change the law on chancel repair liability.

It might be thought that a legal and political system that cannot bring itself to follow its Law Commission’s recommendation on such a relatively small and precise matter of property law concerning churches and their neighbours is hardly likely to cope with the much bigger and vaguer question of whether to disestablish the Church of England. Nevertheless, the twenty years since Aston Cantlow have seen calls for disestablishment grow louder. Labour’s plan, as proposed in the commission chaired by Gordon Brown, to abolish the House of Lords would take the Anglican bishops out of the second chamber. Censuses show a decline in those regarding themselves as Anglican. Like many other churches and religious institutions, the Church of England’s record on abuse has been appalling, and only last week the Archbishops’ Council announced it was ending the contracts of the members of its Independent Safeguarding Board. Although the Coronation of King Charles III and Queen Camilla was conducted splendidly in Westminster Abbey, their civil marriage was not conducted in an Anglican church, though it was blessed at St George’s Chapel, Windsor. Same sex couples cannot by law have a Church of England wedding. The idea of a national church in England seems to be on the wane.

Much as the lovers of long words might relish a constitutional and religious controversy between advocates of disestablishmentarianism and of antidisestablishmentarianism, a simpler way of looking at the issue in the light of Aston Cantlow v Wallbank is to ask whether the Church of England is already disestablished or perhaps was never established. It is more fruitful to consider particular relationships between faith communities, members and neighbours, than to assume that the way forward hinges on establishment or disestablishment.  

We intend to explore these issues this autumn, in the village of Aston Cantlow itself, and welcome all-comers who wish to debate matters, including the border line between public and private law (further details will be circulated in the coming weeks). Today, on the exact anniversary of the decision in the Judicial Committee of the House of Lords, we draw attention merely to the wealth of insights from each of the Law Lords on the nature of the Church of England. While agreeing in the result, their Lordships had different views of the relationships between the national church and the state it exists to serve.

Lord Hope concluded that, ‘the Church of England as a whole has no legal status or personality’: "There is no Act of Parliament that purports to establish it as the Church of England … What establishment in law means is that the state has incorporated its law into the law of the realm as a branch of its general law… The relationship which the state has with the Church of England is one of recognition, not of the devolution to it of any of the powers or functions of government."

The late Lord Rodger noted that, "The juridical nature of the Church is, notoriously, somewhat amorphous… The mission of the Church is a religious mission, distinct from the secular mission of government, whether central or local. Founding on scriptural and other recognised authority, the Church seeks to serve the purposes of God, not those of the government carried on by the modern equivalents of Caesar and his proconsuls. This is true even though the Church of England has certain important links with the state. Those links, which do not include any funding of the Church by the government, give the Church a unique position but they do not mean that it is a department of state …"

Lord Scott agreed in the result but disagreed with the other four Law Lords concerning the PCC which he believed was in fact carrying out functions of a public nature. On his analysis, the Church of England is ‘a church by law established’ and one ‘to which the Anglican public are entitled to have recourse, regardless of whether they are practising members of the church, for marriage, for baptism of their children, for weddings, for funerals and burial, and perhaps for other purposes as well …’

That claim may no longer hold, given that the law now allows same sex couples to marry but forbids that from happening in the Church of England.
The paradox of believing that the PCC was a ‘public authority’ was that public authorities could not then be ‘victims’ bringing cases under the Human Rights Act, which, as Lord Nicholls observed, would be an ‘extraordinary conclusion. The Human Rights Act goes out of its way, in section 13 to single out for express mention the exercise by religious organisations of the Convention right of freedom of thought, conscience and religion. One would expect that these and other Convention rights would be enjoyed by the Church of England as much as other religious bodies.’

Twenty years after the judgment of the House of Lords in Aston Cantlow v Wallbank, the quest should be to appreciate how the fabric of society is interwoven with the relationships between faith communities and their neighbours. Particular sources of conflict, such as this arcane area of property law, should be addressed in timely fashion. Litigation between PCCs and their neighbours over chancel repairs is unedifying. In certain circumstances, however, it can be cathartic for a dispute to be brought to a head in an ecclesiastical or secular court. For example, there are increasingly liberal decisions by consistory courts on how people of diverse backgrounds might describe deceased family members on gravestones. It is the relationships of respectful good neighbourliness which need to be created, nurtured and sustained. On this 20th anniversary of Aston Cantlow and in the run-up to the 25th anniversary of the Human Rights Act 1998, it is timely to enquire whether chancel repair liability, or for that matter prohibitions on same sex marriages in church, should continue to be enforced by law.

Mark Hill KC was junior counsel for Aston Cantlow Parochial Church Council before the House of Lords.
Simon Lee is professor of law at Aston University and emeritus professor of jurisprudence, Queen’s University Belfast.

This article was orginally published on U.K. Const. L. Blog (26th June 2023).

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