The Queen v. the Lord Bishop of Southwark

Ex Parte the Churchwardens and the PCC of the Parish of St Luke’s Kingston Upon Thames.

Readers of New Directions may have followed this case in the National Press or seen the report on BBC Newsroom Southeast. It is an application by the Churchwardens and the Parochial Church Council of St Luke’s for an Order of Certiorari to quash the decision of the Bishop of Southwark to suspend the living of the Parish in order to appoint a half time Priest-in-Charge. The action has its origins in an exercise in the Diocese of Southwark on the part of the Pastoral Committee whereby it reviewed all the Deaneries in the Diocese with a view to making cuts in manning levels. In some cases they came to the conclusion that adjacent parishes would share a priest between them and thus have a “half post” each. In reality, they would both jointly and severally have the services of a full time priest and such a proposal would have the makings of a union of benefices or a Pastoral Scheme under the Pastoral Measure 1983. In other cases, such as St Luke’s Kingston, the Diocesan Pastoral Committee recommended that the Parish should itself become designated a “half post” and be suspended in order to appoint a Priest in Charge who would receive a half stipend and make up the balance of his income by some other remunerative work.

The Applicants and the Diocese agree that there is no such thing in law as a “half post” and that there is no reference to such a post in any Church legislation. It is also common ground that the Diocesan Pastoral Committee’s recommendation does not constitute a Pastoral Scheme or Order within the meaning of Sections 17 to 22 of the Pastoral Measure 1983. The parties diverge on the issue of the Bishops right to accept that recommendation and suspend the living in order to create a “half post”.

There are a number of other issues involved in this case. For example, the Applicants argue that in reviewing the staffing levels of the Diocese the Diocesan Pastoral Committee should have followed the consultative procedures set out in Section 3 of the Pastoral Measure whereas the Diocese maintains that a “half post” is not a Pastoral Scheme or Order under the Measure and so the consultative procedures under Section 3 do not apply. There are also issues raised by the Applicants relating to the fairness of the decision to create a “half post” and to suspend. These are not primary issues involved and I will not go into them here.

At the hearing for Leave to proceed with this application, Mr Justice Brooke said that, for so long as the Church of England wished to remain established, it should follow Good Law which is the basis of sound administration. It became apparent at that hearing that the rival arguments came together on one point. That was, whether the Bishop should have taken account of the recommendation of the Diocesan Pastoral Committee to create a “half post” when deciding to suspend the living at St Luke’s. The Pastoral Committee is a creature of Statute (in this case the Pastoral Measure 1983) and has powers rights and duties which are set out in Section 2 of the 1983 Measure. Clearly the Pastoral Committee has no powers to recommend anything which is not provided for in the Pastoral Measure 1983 and so such a recommendation on the part of the Diocesan Pastoral Committee is Ultra Vires.

The argument then transfers to the powers of suspension belonging to the Diocesan Bishop by virtue of Section 67 of the same Measure. On the one hand the Applicants claim that the Pastoral measure was designed to make provision for the Cure of Souls by means of Pastoral Schemes or Orders. The Measure’s gestation period was very long, dating back to about 1973. It was a major plank in the legislative programme of the General Synod. The power to suspend for up to five years given to a Diocesan Bishop is ancillary to the Measure to give time for pastoral reorganisation in terms of Pastoral Schemes and Orders. It may therefore only be used when such a Scheme or order is genuinely under consideration. It may not be used to implement alternative and innovative Pastoral reorganisation.

The Bishop of Southwark asserts that, since the Measure was a consolidating Measure, then the Courts may consider the Measure in its historical context to establish the effect and meaning of Section 67 of the 1983 Measure. He claims that there were in existence before the 1968 Pastoral Measure both general and a specific powers of suspension which are reflected in Sections 67 and 69 of the 1983 Measure and that therefore, or alternatively in any event, the power under Section 67 must be a General Power; a free-standing power exercisable where a Bishop believes it to be pastorally necessary.

If the Bishop of Southwark is right, then the effect of the 1983 Measure, when it was passed, was to remove the Common Law property rights of patrons without compensation. It would also mean that Bishops would have an unfettered discretion as to the suspension of Benefices. Whilst they would have to give reasons and consult the Patron and interested parties under the Measure (in this case the PCC, the Area Dean and the Lay Chairman of the Deanery Synod) they would not have to take account of their objections if they chose not to do so. This power is certainly one which Diocesan Bishops would want at a time when Diocesan Budgets are increasingly under pressure.

Such a general power would also seriously undermine the Parsons’ Freehold. There would be nothing to prevent a Bishop from making suspension an automatic step upon a living becoming vacant and, indeed, this has already been the case in some Dioceses until challenged by Patrons affected by that policy. Neither would it prevent the appointment of Priests-in-Charge on three year contracts as a tool of management.

At the hearing on 13th November 1995, when the Applicants were granted leave of the Court to seek a Review, the significance of this case to the Church of England was soon appreciated by Mr Justice Brooke. He said that the contemporary importance of all this was found in an affidavit before him wherein it was deposed that of 394 Parishes of the Diocese of Southwark 42 are suspended. In the Diocese of Ely of 258 Parishes 94 are suspended and in London Diocese there are 90 out of 407 parishes in suspension. Accordingly, the legality of suspension under Section 67 may well have been an issue of importance to the parties before him that day but it had wide spread implications for the Church of England because of the scale of suspensions nation-wide. He concluded by saying that these matters were properly arguable and it was of public importance particularly to the Church of

This case will make legal history. It is the first time that a parish has taken its Bishop to Court over such a matter. Whatever the outcome, a precedent will be established as to the suspension of benefices which will last until the Church of England passes legislation to abolish the Freehold. Either way, it may persuade the General Synod to bring that legislation forward sooner rather than later.

A finding at the Review hearing next year in favour of the Bishop of Southwark would seriously undermine the Freehold and the rights of Patrons. It will enhance the powers of the Bishops who might, in future, be able to rely upon a leading case whereas previously there was doubt and uncertainty. A finding in favour of the Applicants in this case could cost the Church of England A great deal. Estimates as to the number of Parishes in England which are in suspension exceed a thousand and are possibly as many as fifteen hundred many of which might be able to insist upon an appointment of an Incumbent.

A change in the status quo at the moment could have very serious consequences and the House of Bishops of the Church of England might well bear this in mind as the parties approach the hearing of this case. It is a foolish litigant who goes to court convinced that he will win. Almost as foolish as one who goes to Court convinced that he will lose.

AUTOLYCUS