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Opinion: Pivotal moment for Church and State

15 September 2023

Twenty years since the Aston Cantlow ruling, Mark Hill considers its significance and ramifications


St John the Baptist, Aston Cantlow, in Warwickshire, and some of the land that surrounds it

St John the Baptist, Aston Cantlow, in Warwickshire, and some of the land that surrounds it

FROM the sealing of Magna Carta in 1215, through the Reformation of the 16th century, and to the present day, there has been a clear association in England between the Monarch, the Church, and the State, with the Church of England enjoying a unique position in civil and political society, which can be both a privilege and a burden.

Twenty years ago, the Law Lords (now the Supreme Court) considered the constitutional status of the Church of England when determining the appeal in Aston Cantlow PCC v. Wallbank (News, 4 July 2003). Although the presenting issue was the enforceability of a landowner’s obligation to fund works to the church fabric under the Chancel Repair Act 1932, the greater significance of the case concerned the public and private functions of the Church of England, and whether it might be disadvantaged in the enjoyment of freedom of religion under Article 9 of the European Convention on Human Rights, which became directly enforceable in UK courts after the passing of the Human Rights Act 1998.

The Saxon church of Aston Cantlow, dedicated in honour of St John the Baptist, lies three miles from Stratford-Upon-Avon. It was here that William Shakespeare’s parents, John Shakespeare and Mary Arden, were married in 1557. Mr and Mrs Wallbank owned Glebe Farm. They did not dispute that their property carried with it the obligation to repair the chancel of the parish church. They set out to argue, however, that the obligation was unenforceable in consequence of the provisions of the Human Rights Act 1998. They maintained that the obligation was akin to an unlawful tax levied by the Church, and therefore in violation of Article 1 of the First Protocol to the European Convention.

In doing so, they stirred up a nationwide controversy, notwithstanding that it was widely believed that chancel-repair liability had fallen into desuetude. Lord Nichols referred to “the anachronistic, even capricious, nature of this ancient liability”, which the distinguished legal historian Professor Sir John Baker KC had described as “one of the more unsightly blots on the history of English jurisprudence”.

Mr Justice Ferris, at first instance, determined that the law on chancel-repair liability was clear and unambiguous, and was neither a levy nor a tax but one of the “incidents of ownership” of land.

The Court of Appeal reached the opposite conclusion, but, in doing so, determined that the parochial church council (PCC) was a public authority for the purposes of the Human Rights Act. It relied on the fact that a PCC is created by legislation, under the Parochial Church Councils (Powers) Measure 1956, and “forms part of the church by law established”. The House of Lords granted permission to appeal, and, after a three-day hearing, judgment was delivered on 26 June 2003. Front and centre was the legal status of the Church of England.

THE Law Lords disagreed with the Court of Appeal. Lord Hope commented that “the Church of England as a whole has no legal status or personality.” Instead, legal personality was dispersed among various office-holders and bodies that existed within its overall structure.

Lord Nicholls observed that some of the emanations of the Church discharged functions that might qualify as governmental, and he named church schools and the solemnisation of marriage as such two instances. But, he said, these should not be regarded as “infecting” the Church of England as a whole with the character of a governmental organisation.

Lord Rodger concluded that the mission of the Church was a religious mission, distinct from the secular mission of government, and that “the PCC exists to carry forward the Church’s mission at the local level.”

Summarising the import of the Aston Cantlow case in the subsequent case of Johnson v. London Borough of Havering, Lord Justice Buxton observed that “in public law, and without any disrespect, the PCC had no different status from that of the committee of a golf club.” In any event, all five Law Lords agreed that the enforcement of chancel-repair liability was a private act, as opposed to the discharge of a public function.

These findings, thankfully, sufficed to deal with the so-called victim paradox created by the architecture of the Human Rights Act. One ironic consequence of the Court of Appeal’s determination (had it been left unchallenged) would have been that a PCC, being classified as a core public authority, would not enjoy any Convention rights.

Thus it would not be able to claim the right to freedom of religion under Article 9. That would be an extraordinary conclusion, Lord Nichols remarked, particularly when the Act went 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. He commented: “One would expect that these and other Convention rights would be enjoyed by the Church of England as much as other religious bodies.”

BUT, taking a long view, what are the consequences of the decision of the Judicial Committee of the House of Lords, 20 years on?

For the legal profession, Aston Cantlow remains a guideline case on core and hybrid public authorities, and the interplay between Strasbourg jurisprudence on governmental function and the domestic law and practice on amenability to judicial review.

For conveyancers, changes and clarifications to the Land Registration Act 2002, which was unwisely enacted on the basis of the flawed reasoning of the Court of Appeal, provided for chancel-repair liability to remain an overriding interest for ten years. If the obligation were still unregistered on 13 October 2013, a purchaser for value without notice took the land free of the liability. Thus, the conveyancing trap has largely been removed, and aggressive marketing of often unnecessary insurance has been reduced. The Legal Advisory Commission of the Church of England and the Charity Commission have offered advice on the duty of PCCs to register and/or enforce chancel-repair liability. So, the problem is less acute.

Curiously, the reach of the decision may be felt most keenly in relation to marriage. Several times in the judgments, reference is made to the function of parochial clergy in the solemnisation of marriage. This is repeatedly — and correctly — identified as a public function of priests of the Church of England.

In a subsequent case to reach the Supreme Court, Baiai v. Secretary of State for the Home Department, concerning government legislation intended to combat sham marriages and the evasion of immigration control, Lady Hale commented that “the Church of England believes itself (with some Parliamentary encouragement, for example in sections 57 and 58 of the Matrimonial Causes Act 1857) required to marry for the first time anyone who lives in the parish regardless of faith or the lack of it.” And it is this public responsibility of parochial clergy to solemnise marriage which may present some difficulties.

In the two decades that have followed the judgment, the nature of marriage has changed almost beyond recognition. We have witnessed the introduction of civil partnerships and subsequently same-sex marriage. Neither statutory enactment permitted the clergy of the Church of England to solemnise such unions.

But the mood of the nation, and perhaps also the Church of England, seems to be changing. On 20 January 2023, the House of Bishops published its Response to Living in Love and Faith (GS 2289) (News, 20 January), which included the joyful affirmation of committed same-sex relationships and the provision of Prayers of Love and Faith. This development was affirmed by the General Synod in February 2023 (Synod, 17 February).

TWENTY years on from the decision of the House of Lords, which defined and described the cleavage between the public and private functions of the Church of England, the situation is more complex.

The Church of England is judicially recognised as essentially a religious organisation, not an organ of government. In the new Carolean era, the previous deference to Her Late Majesty, which had hitherto been an inhibitor on constitutional revision, no longer pertains.

With the rise in secularism and religious pluralism, and the active questioning of the presence of bishops in the legislature, many see the Church of England as increasingly irrelevant. It has become a live issue whether the Church of England can properly remain a state Church when its practice on equal marriage is discriminatory under state law of universal application, notwithstanding the quadruple locks inserted into earlier legislation.

Establishment is a rope of many strands. Individual threads may break, with no perceivable impact overall. But, once a critical number of threads are severed, the rope can no longer hold. Some form of re-establishment seems inevitable in the next decade, and there are those who argue that the historic nexus between the Church of England and the State could be completely lost withn a generation.

The remarks of the Law Lords have not immunised the Church of England from disestablishment — far from it. But history may come to see the House of Lords’ decision in Aston Cantlow PCC v. Wallbank as a pivotal moment in the slow evolution of the relationship between the Church and the State in England.

The Worshipful Mark Hill KC is Honorary Professor at the Centre for Law and Religion, Cardiff University, and is Chancellor of the dioceses of Chichester, Leeds, and Europe.

The is an edited version of a lecture delivered at the parish church of St John the Baptist, Aston Cantlow, in Warwickshire, on 4 September, to mark the 20th anniversary of the Law Lords’ judgment in Aston Cantlow PCC v. Wallbank.

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