CHURCH of England dioceses are slowly moving towards the implementation of the Diocesan Boards of Education Measure, which passed into law in April 2021. If all goes well, all dioceses should have taken the final steps by 1 January 2023 and the new Measure will be in force throughout England.

There has been slow progress so far, however. This is in part due to diocesan synodical timetables, but also because a difficult choice has to be made in each diocese about how each future diocesan board (DBE) will be constituted.

There is no problem about the continuing purpose of the DBE and its relationship with schools in the diocese. The Measure states: “The DBE for each diocese must:

“(a) promote or assist in the promotion of education in the diocese that is consistent with the faith and practice of the Church of England;

“(b) promote or assist in the promotion of religious education and religious worship in schools in the diocese;

“(c) promote or assist in the promotion of church schools in the diocese;

“(d) promote co-operation between itself and other persons concerned with education in the diocese.”

The difficulty comes with how each future DBE might be set up (a “scheme”). All the new DBEs must be registered charities, and it is well known that Charity Commission guidance advises that such charities should be independent, autonomous corporate bodies, especially if they have substantial assets and budgets and/or carry out important public duties.

The Measure continues an adaptation of the existing two options for a single diocesan scheme:

“(a) a company limited by guarantee, or a charitable incorporated organisation (‘CIO’), which is registered in the register of charities;

“(b) an unincorporated body which is registered in the register of charities.”

“What is surprising is that General Synod agreed to add a third option: (c) the Diocesan Board of Finance”, i.e. setting up the DBE as a committee of the Diocesan Board of Finance (DBF).

This new committee option seems fraught with legal difficulty and risk — both for the members of the DBE and the DBF. It appears to rely for its charitable status on an expansion of the charitable objects and powers of the DBF. The committee itself will not be a charity, even though it carries out all the relevant functions.

We await with interest the response of the Commission to applications to register the unincorporated boards, or to remark on the status of the new DBF committees where these options are taken.

It was explained at the session on the Measure held by the Ecclesiastical Committee of Parliament that this committee option had been added because it had already been adopted by some dioceses. It was however an option not permitted by the 1991 Measure, which the 2021 Measure replaces, and could ever have been valid only if specifically authorised by the Secretary of State for Education. These retrospective provisions seem to be an attempt to paper over the resultant crack. The danger is that a DBE, invalidly constituted and thus potentially acting outside its legal authority, could fall in.

A further oddity is that the implementation guidance provided in May 2021 by the Church of England Education Office advises strongly against its continued use, placing those dioceses that for some reason do not desire a corporate body with only the DBF committee as a recommended alternative.

The problem with setting up the DBE as a committee of the DBF is that it would be both less independent and more legally precarious than a simple autonomous unincorporated charity. Under this model, the DBF has legal responsibility (legally speaking, it is the DBE) — but it is not required to have any members with relevant expertise. Nor, under the new Measure, can it exercise any of the DBE’s powers, except in extreme circumstances. It could be argued, then, that it is a charity that has no effective ability to carry out its charitable objects.

The DBE committee, on the other hand, would have all the appropriate expertise among its members, and would take all the decisions (which do not have to be ratified by the DBF) — but it is neither a charity nor a corporate body, and thus exposes its members to personal liability if anything goes wrong.

It would be possible to insert some modifications into the new schemes to mitigate these problems. Alternatively, one option might have been to do away with DBEs as a separate entity and leave the DBF as the relevant religious authority for the diocese. This is the position in Wales (which has no DBE Measure and no DBEs), and it can be made to work well. The Measure in England doesn’t allow this option, however.

It is no wonder, then, that dioceses are taking their time. The fortunate ones are those where all the parties in the diocese prefer the autonomous, corporate DBE option. This is surely the safest decision, bringing all the protections that come with being a separate registered charity and a company registered at Companies House.