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So, are PCCs allowed to meet without meeting?

by
28 March 2020

David Lamming reflects on this and other legal questions that now arise for the Church of England’s government at all levels

myreviewer.com

The Revd Richard Jedd (Will Hay) chairs a meeting in the 1935 comedy Dandy Dick

The Revd Richard Jedd (Will Hay) chairs a meeting in the 1935 comedy Dandy Dick

THE Church is not immune from the lockdown imposed by the Government in recent days in the interests of public health, and the direction, subject to limited exceptions, for people to stay at home (now enforceable by emergency regulations).

Attention has focused, understandably, on the closure of churches, not just for public worship, but for all purposes, including private prayer (News, 27 March). But all other gatherings of people, not members of the same household, are also proscribed. How is the Church to conduct its business in these unprecedented times? This article addresses three matters: (1) APCMs and deanery-synod elections, (2) the 2020 General Synod elections, and (3) PCC meetings.

Until recently, an FAQ on the Church of England website, “What should I do about my PCC or APCM meeting?” opened with the advice that “churches will be encouraged not to hold meetings unless they are absolutely necessary. The national Legal Office has written to every Diocesan Registrar and Diocesan Secretary with advice on how to suspend the legal requirements to hold these meetings.”

This raises the questions what the “legal requirements” are, how they can be suspended, and, in respect of PCC meetings, what constitutes a meeting.

 

Postponing APCMs

SECTION 10(1) of the Churchwardens Measure 2001 and rule 78(5) of the Church Representation Rules (CRR) empower the bishop of a diocese “so far as necessary for giving effect to the intention(s)” of the Measure, or a provision of the rules, “to extend or alter the time for holding any meeting or election.”

Pursuant to these powers, and using a template provided by the Legal Office, many (if not most) bishops have now made a “Bishop’s Instrument” extending the latest time for holding the meeting to choose churchwardens and the APCM from 31 May to 31 October 2020 (see, for example, the Oxford and Peterborough diocesan websites).

In consequence, the Instrument provides that those who are parochial representatives of the laity on the deanery synod on the date when it was made “continue to hold that office… until 30 November 2020”.

Obviously, some parishes will have held their annual meetings before that date, in which case an Explanatory Note to the Instrument states that its effect is that “the previously elected representatives of the laity on the deanery synod (i.e. those elected in 2017 or to fill casual vacancies since the 2017 elections) continue in office until 30 November 2020 (rather than 30 June, as would otherwise have been the case) and the newly elected representatives of the laity on the deanery synod (i.e. those elected in 2020) will not take up office until 1 December 2020 (rather than 1 July.)”

The Explanatory Note also states: “As a result, it will be the current members of the houses of laity of deanery synods who will comprise the electorate for the House of Laity of the General Synod in elections to the General Synod this year.”

Whether or not, in practice, the electorate for the General Synod elections would have been very different (the controversial CRR rule M8(5), limiting service on the deanery synod to two successive three-year terms, is not retrospective), the expectation was that those elections would be held on the basis of the electorate’s being the deanery-synod members elected at this year’s APCMs for a three-year term commencing 1 July 2020.

Moreover, interest groups on the General Synod have been gearing up their supporters to seek to secure that those sympathetic to their position were elected at this year’s APCMs.

 

Postponing the General Synod elections

THIS begs the question whether the General Synod elections will still go ahead in September/October 2020 as intended. This was certainly the expectation when the Synod met in London in February and agreed the allocation of seats among the dioceses and the rules for the conduct of the elections.

Since the rules provide (with a few exceptions) for the 2020 elections to be conducted electronically (both nominations and voting), those elections could, arguably, still go ahead as planned, notwithstanding the current “social distancing” rules.

On 23 March, however, the Second Church Estates Commissioner, Andrew Selous MP, moved the addition of a new clause to the Government’s Coronavirus Bill, whereby the Queen is empowered “at the joint request of the Archbishops of Canterbury and York” to make an Order in Council postponing to the date specified in the Order the date on which the Convocations of Canterbury and York stand dissolved, and thereby postponing the 2020 elections.

This provision is now section 84 of the Coronavirus Act 2020, which received Royal Assent on 25 March. In a speech in the House of Lords on 24 March, the Bishop of Rochester, the Rt Revd James Langstaff, said: “This is a small thing, but I am grateful for the inclusion in the other place of Clause 84, which solved a little conundrum about the legality of the General Synod of the Church of England under these circumstances.”

It may reasonably be presumed that Mr Selous was prompted to table the new clause at the request of the Archbishops and/or the Legal Office at Church House, in which case serious consideration must be being given to postponement of the 2020 General Synod elections.

 

Postponing sessions of General Synod

THE question now arises as to the date to which the General Synod elections may be postponed. Linked to this is the issue whether the group of sessions in York this July (currently scheduled for July 10-14) will be cancelled.

A power for the Presidents (i.e. the two archbishops) to do so “in circumstances of special urgency or importance” (SO 2(6)) was added to the Synod’s standing orders in July 2018; so a cancellation in current circumstances is already catered for.

If the General Synod elections are postponed to (say) December, there will be no inaugural group of sessions of the new quinquennium on 23-25 November. The inaugural group of sessions would then be those scheduled for next February. At present, however, all this must be speculation, given the uncertainty over the length of the coronavirus emergency period and its consequent restrictions on normal life.

 

PCC meetings during the pandemic

ADVICE from the Oxford diocesan secretary “encourage[s] standing committees to meet, where possible, using remote meeting technology and digital collaboration tools to ensure governance continues (and/or to use rule M29 to conduct business by correspondence if needed”.

But what is the proper role of the standing committee in current circumstances, and what is the scope of rule M29?

 

CRR rule M29

THERE is a common misconception, I believe, that the combination of rule M29 (business by correspondence) and rule 76 (communicating by email or post), coupled with the abolition of the former rule requiring each PCC to hold a minimum of four meetings a year and its replacement by a requirement to hold “a sufficient number of meetings to enable the efficient transaction of its business” (rule M23(1)), enables everything to be done by e-mail.

This is not what rule M29 enables or allows. Its purpose was explained by the Revision Committee for the draft Measure containing the new CRR (now the Church Representation and Ministers Measure 2019) when reporting to General Synod in July 2018 its reasons for adding the rule: “The Committee recognised that there were occasions when PCCs needed to take decisions quickly — for example to approve expenditure on urgent repairs — without waiting to hold a meeting.”

Accordingly, “[The] rule provides for the chair of the PCC — if he or she considers that any business can properly be conducted by correspondence — to instruct the PCC secretary to send proposals requiring approval to members.” (See GS 2046YY paras 59 and 60.) In effect, it is a postal vote on specific proposals, but it is not a meeting.

Section 2(1) of the Parochial Church Council (Powers) Measure 1956 (as amended) states: “It shall be the duty of the minister and the parochial church council to consult together on matters of general concern and importance to the parish.”

During the present coronavirus pandemic crisis, it is surely even more important that ministers meet with their fellow PCC members (online, if not physically) to discuss the important pastoral and other issues of concern and importance to everyone in their care. Consulting “together” cannot take place by the minister “‘instructing” the PCC secretary to send a proposal to PCC members for them to approve or object to within a stated timescale.

 

Use of the standing committee

NOR can or should such discussion/consultation be simply delegated to the standing committee. While it is now the case that where there are no more than 50 names on the church electoral roll (likely to be the position in many rural parishes), the standing committee is to consist of the minister and “at least” two other members of the PCC (CRR rule M31(3)), thus enabling a standing committee of just the minister and two other PCC members, the role of the standing committee is to transact the business of the PCC “between meetings”, not “instead of” PCC meetings (rule M31(6)), and it is provided expressly (by rule M31(6)(a)) that the standing committee “may not discharge a duty of the PCC”: arguably, this must include the “duty” under section 2(1) of the 1956 Measure.

 

‘Virtual’ PCC meetings

THE solution, I suggest, lies in the interpretation of the word “meeting”. Understandably, this is undefined in the CRR. Chambers Dictionary defines a meeting as, among other things, “an organized assembly for the transaction of business”.

Traditionally, that has involved everyone’s coming together at the same physical location. But, as Peter Collier QC has argued (in a comment on 21 March on a post on Law & Religion UK), “that traditional understanding must surely be renewed ‘afresh in each generation’ according to all the circumstances”, those circumstances including, today, the available digital technology and the current coronavirus lockdown.

A practice direction issued by our senior judges on 20 March states, “The current pandemic necessitates the use of remote hearings wherever possible,” and last week the UK Supreme Court conducted a full appeal hearing (Fowler v. HMRC) at which the five justices sat in front of screens in their separate rooms, and counsel (also on screen) made their submissions remotely.

And, on Friday, we learnt that the Prime Minister, though now isolated for seven days with the virus, will continue to conduct meetings by video-conferencing. As Collier added: “If even our courts are accepting that we must look at the way we do things and use a purposive construction of any rules, then surely the church should not be too far behind.”

So, I suggest, PCCs should continue to meet, albeit remotely by Skype or Zoom or, where that is not possible, by a telephone conference call. Minutes can still be kept of such a “virtual meeting” and record as present all those members taking part. There may be some parishes where such use of technology is not possible, but, as Collier says, “the essential issue for now is not to deal with cases that could not rely on this purposive interpretation, but to declare that it is valid for those who can.”

 

David Lamming is a retired barrister and a member of the House of Laity of the General Synod.

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