LEGISLATIVE COMMITTEE OF THE GENERAL SYNOD:
COMMENTS AND EXPLANATIONS ON THE Church of england (miscellaneous
provisions) MEASURE
INTRODUCTION
1. The Legislative Committee of the General Synod,
to which a Measure entitled the Church of England (Miscellaneous
Provisions) Measure ("the Measure") has been referred,
has the honour to submit the Measure to the Ecclesiastical Committee
with these Comments and Explanations.
2. This Measure is the tenth in a series of Miscellaneous
Provisions Measures dealing with uncontroversial matters that
do not merit freestanding legislation.
THE MEASURE: NOTES ON CLAUSES
3. Clause 1 and Schedule 1 amend the New Parishes
Measure 1943.
4. Under section 13 of the 1943 Measure the Church
Commissioners have power to acquire land for various church purposes,
which subsequently vests under section 16 in either the incumbent
or the diocesan authority on trust for the parochial church council.
The Commissioners are also required by section 17 of the 1943
Measure to consent to disposals of land acquired under it or under
earlier legislation which is no longer required for the purpose
for which it was acquired.
5. The Report of the Review of the Dioceses Pastoral
and related Measures recommended in 2004 that the Commissioners'
role in the acquisition of property under the 1943 Measure should
be devolved to the dioceses on the ground that the work in connection
with it could be more appropriately carried out at diocesan level
rather than at the centre, save in exceptional circumstances (e.g.
where the parties were connected).
6. Paragraph 2 of Schedule 1 accordingly passes the
Commissioners' power to acquire property for the purposes set
out in section 13(1) of the 1943 Measure to the diocesan board
of finance ('DBF') for the diocese in which the property is situated
and inserts a new requirement that the consent of the Commissioners
to the transaction will be required if the acquisition is a purchase
and the seller is a 'connected person' (as defined) or if the
person or body in whom the property is to vest under section 16
has not obtained a surveyor's report confirming that the terms
on which the acquisition is to proceed are the best that can reasonably
be obtained.
7. Paragraph 3 replaces the Commissioners with the
DBF as the recipient of gifts or grants of land for sites of churches
from corporations and other bodies referred to in section 14 of
the 1943 Measure.
8. Paragraphs 4 and 5 make consequential amendments
to sections 15 and 16 respectively.
9. Paragraph 6 removes the requirement to obtain
the Commissioners' consent to a disposal of land no longer required
for the purpose for which it was acquired, save where the person
or body acquiring the land is a connected person or the transaction
is not being carried out in accordance with a surveyor's report
confirming that the terms on which the disposal is to proceed
are the best that can reasonably be obtained.
10. Paragraph 7 substitutes references to the Commissioners
for references to the DBF in section 20, which contains provisions
as to land acquired for burials.
11. Paragraphs 8, 9 and 10 contain consequential
amendments and repeals.
12. Clause 2 amends section 6(3B)(a) of the
Church Commissioners Measure 1947 to update a cross-reference
which is now out of date following the amendment of section 6(3B)(d)
by section 2 of the Church of England (Miscellaneous Provisions)
Measure 2005 ('the 2005 MPM').
13. Clause 3 amends the Church Funds Investment
Measure 1958 to reflect the dissolution of the Central Board of
Finance by deleting from the types of funds which may be invested
under the 1958 Measure funds held by the Central Board of Finance
as part of its corporate funds or as trustee.
14. Clause 4 amends the Clergy Pensions Measure
1961 by giving the Church of England Pensions Board an express
power to constitute committees and delegate functions to them.
15. Clause 5 amends section 2 of the Ecclesiastical
Jurisdiction Measure 1963.
16. Subsection (1)(a) amends the 1963 Measure to
insert a word inadvertently removed when it was amended by the
Church of England (Miscellaneous Provisions) Measure 2006 ('the
2006 MPM').
17. Subsections (1)(b) and (c) and (2) introduce
greater consistency in the provisions in the 1963 Measure relating
to diocesan chancellors' retirement ages, and give the diocesan
bishop power to continue a chancellor in office beyond the statutory
retirement age of 70 for up to one further year where this is
considered to be in the interests of the diocese.
18. Clause 6 amends sections 20 and 23 of
the Endowments and Glebe Measure 1976. The need for these amendments
results from changes made by the Church of England (Miscellaneous
Provisions) Measure 2005 which reduce the Church Commissioners'
involvement in diocesan glebe transactions to those set out in
Schedule 3 to the 1976 Measure.
19. Clause 7 amends section 69 of the Pastoral
Measure 1983 to provide that, where the Privy Council's decision
is awaited on an appeal against a decision of the Church Commissioners
on a representation made in connection with a draft pastoral scheme,
the three-year maximum period for restricting presentation to
a benefice referred to in subsections (1) and (3) will extend
up to and including the date of delivery of the Privy Council's
decision.
20. Clause 8 amends Part 1 of Schedule 1 to
the National Institutions Measure 1998 (which provides for the
constitution and membership of the Archbishops' Council) by inserting
a new paragraph 4A. Sub-paragraph (1) provides that elected members
of the Archbishops' Council are to be elected in accordance with
the Standing Orders of the General Synod. Sub-paragraph (2) provides
that, where an elected member of the Council ceases to be a member
of the Synodical House which elected him or her, he or she will
automatically cease to be a member of the Council; this is, however,
subject to sub-paragraph (3), which provides that an elected member
of the Council does not cease to be a member of the Council simply
as a result of the dissolution of the Synod.
21. Clause 9 provides that, where gifts are
expressed as gifts to or for the benefit of 'the Church of England'
(or in similar terms lacking clarity as to the donor's wishes),
they will take effect as gifts to the Archbishops' Council. Because
there is no corporate body called 'the Church of England', such
gifts must currently be dealt with by way of directions under
the Royal Sign Manual or schemes made by the court or the Charity
Commission. The new provision is intended to avoid the need for
such directions or schemes in future. Any gifts covered by it
will, of course, remain subject to any trusts or other conditions
that the donor imposes in the document under which the gift is
made.
22. Clause 10 contains various provisions
relating to cathedrals.
23. Clause 10(1) is declaratory of the existing law
in relation to the status of cathedrals and is included for the
avoidance of doubt. Ecclesiastical corporations - which include
cathedrals - fall outside the definition of 'charity' employed
in the Charities Act 1993, which means that they are not subject
to the jurisdiction of the Charity Commission. A number of legislative
provisions have been made in relation to cathedrals in recent
years and it is considered desirable to make clear that the status
of cathedrals as ecclesiastical corporations outside the jurisdiction
of the Charity Commission remains unchanged.
24. Clause 10(2) relates to Christ Church Cathedral,
Oxford. As (uniquely) a joint ecclesiastical-academic foundation,
Christ Church is not covered by the provisions of the Cathedrals
Measure 1999. The detailed provisions in clause 10(2) were therefore
drafted in consultation with Christ Church to introduce changes
in the spirit of those affecting all other cathedrals which took
effect following the coming into force of the 1999 Measure. Provision
is made, amongst other things, to increase the number of non-residentiary
canons, to provide for the appointment of lay and ecumenical canons
and in respect of the tenure, rights and duties of such canons,
as well as for the creation of a college of canons with specified
functions.
25. Clause 10(3) amends the Care of Cathedrals Measure
1990 to bring proposals for works which would materially affect
human remains in cathedral precincts within the controls contained
in that Measure. Because cathedrals are not subject to the faculty
jurisdiction, control over human remains in cathedral precincts
has up to now been left to secular authorities. The view of the
Archbishops' Council's Cathedral and Church Buildings Division
and of the Cathedral Fabric Commission, however, is that such
works should be brought within ecclesiastical control. If the
proposed new provisions are enacted, the intention is to ask the
Ministry of Justice to amend the secular legislation, disapplying
it in all cases where ecclesiastical controls apply, thus avoiding
'dual control'. (By way of further explanation, relevant paragraphs
from the Revision Committee's report dealing with Clause 10(3)
are set out in the Appendix.)
26. Clause 11 amends the Commons Act 2006
to substitute the relevant DBF for the Church Commissioners as
the body responsible for particular functions or as fulfilling
particular roles under that Act, in line with changes made by
the Church of England (Miscellaneous Provisions) Measure 2006.
27. Lastly, Clause 12 and Schedule 2 make
a number of amendments and repeals consequential upon other changes
made in the draft Measure, in particular to the definitions of
'connected person' and 'qualified surveyor' in the Parsonages
Measure 1938; and Clause 13 deals with citation, commencement
and extent.
SYNODICAL CONSIDERATION
28. The draft Measure was given First Consideration
by the Synod in February 2008 and stood automatically committed
to a Revision Committee. The Revision Committee met once and
considered one amendment proposed by a member of the Synod and
various others proposed by the Steering Committee. As a result,
a number of amendments were agreed to the draft Measure, which
was then returned to the Synod for Revision in July 2008, at which
stage no further amendments were moved and the draft Measure was
committed to the Steering Committee in respect of its final drafting.
29. The Final Drafting and Final Approval stages
both took place at the February 2009 group of sessions of the
Synod. At Final Drafting no special amendments were moved by
the Steering Committee and the Synod approved a number of drafting
amendments. The Measure was then given Final Approval on a division
by Houses. The voting figures were as follows:
| In favour
| Against |
| Bishops | 16
| 0 |
| Clergy | 69
| 1 |
| Laity | 100
| 0 |
30. No abstentions were recorded in the House of
Bishops, none in the House of Clergy and 1 in the House of Laity.
CONCLUSION
31. The Legislative Committee invites the Ecclesiastical
Committee to issue a favourable report on the Measure. In the
event of the Ecclesiastical Committee requiring any further information
or explanation, the Legislative Committee stands ready to provide
this.
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