The Provisions of the Measure |
Section 1 - Amendment of the Ecclesiastical Commissioners
7. Subsection (1) of this section repeals
the proviso to s. 67 of the Ecclesiastical Commissioners Act 1840,
which made provision for the Ecclesiastical Commissioners (now
the Church Commissioners), in making "additional provision
for the cure of souls" to take into account "the wants
and circumstances" of the places from which the funds had
originally come in determining where to make additional provision.
This proviso has not been used for over 50 years: the repeal brings
the statute into line with the Commissioners' actual practice.
8. Subsection (2) makes a consequential
repeal of references elsewhere to the proviso repealed by subsection
Section 2 - Amendment of the Burial Act 1857
9. This section amends the Burial Act
1857 by substituting a new section 25. This will have the effect
that in those cases where it is currently necessary to obtain
both a faculty and a licence from the Secretary of State, or both
an approval under the Care of Cathedrals Measure and a licence
from the Secretary of State, only a faculty or an approval under
the Measure will be required in future. An unnecessary element
of dual secular/ecclesiastical control will be removed leaving
removals that are subject to ecclesiastical jurisdiction to be
dealt with by that jurisdiction alone.
10. Under section 25 of the 1857 Act
as it currently stands it is a criminal offence to remove a body
or human remains from a place of burial without either a faculty
(in the case of a body that is moved from one consecrated place
of burial to another) or the licence of the Secretary of State
(in any other case).
11. The new section 25 provides for
the continued existence of a criminal offence of removing a body
or human remains without a specified form of authority. Butthe
forms of authority that are specified are extended so that they
· any faculty authorising the
removal of a body or remains (and not, as at present, only a faculty
authorising removal from one consecrated place of burial to another);
· an approval granted under
the Care of Cathedrals Measure 2011;
· a licence granted by the
Secretary of State.
Section 3 - Amendment of the Episcopal Endowments
and Stipends Measure 1943
12. This section replaces section 5
of the Episcopal Endowments and Stipends Measure 1943, which confers
a discretionary power on the Church Commissioners to pay (a) the
stipend of a suffragan bishop or a bishop's chaplain and (b) office
expenses. The new provision retains the Commissioners' discretionary
power to pay particular expenses and also enables them to make
a lump sum payment to the bishop, which can then be used for payment
of expenses as they arise. Expenses are accounted for by bishops,
and the accounts are audited by the Commissioners.
Section 4 - Power of Church Commissioners and
Pensions Board to enter into derivative contracts
13. This section is intended to put
beyond doubt that the Church Commissioners and the Church of England
Pensions Board have power to enter into derivative contracts in
relation to the Commissioners' corporate property and the Pensions
Board's charitable funds.
14. The background is that it has always
been considered that both bodies have the capacity to acquire
derivatives. However, in 2012 the Commissioners' and the Pensions
Board's bankers questioned whether either had the capacity to
do so. Their view was that a charitable body needs very clear
authority to be able to enter into a derivative contract, and
that ideally the authority should expressly mention derivatives.
This requires legislative amendment as the investment powers
of both bodies are governed by statute.
15. The new provisions define "derivative
contracts" and related terms by reference to the Corporation
Tax Act 2009, rather than creating a separate definition for the
Measure. This has the advantage that it will attract any case
law about the meaning of "derivative contracts" arising
out of litigation about the Corporation Tax Act, which will help
to keep it in step with the wider use of the expression.
16. In order to avoid the same issue
arising in relation to a different kind of financial instrument
in future, the new provisions also include a delegated power for
each body to make regulations adding other kinds of instrument
to the power conferred by the legislation. Such regulations will
be subject to the scrutiny of the General Synod, which will have
power to amend them, but will be subject to a shorter procedure
than a Measure, so that the change could be made with reasonable
speed if necessary. The regulations will be made by statutory
instrument subject to the negative resolution procedure in Parliament.
17. The new powers will be subject to
the overriding fiduciary duties of members of the Pensions Board
and the Commissioners' Assets Committee, as charity trustees,
to act in the best interests of the charity. The powers will also
be subject to policies made from time to time by the Church Commissioners
and the Pensions Board about the proper exercise of their powers
of investment. In an investment context charity trustees are
required to act prudently and to have regard to the need to maintain
a diverse range of investments. The Charity Commission expressly
acknowledges, in its published guidance on charity investments,
that for a charity with a large portfolio of assets, it may be
appropriate to make use of derivative contracts.
18. At present, as a matter of practice,
the Commissioners have been using derivatives only to hedge other
investments, or to protect themselves against price changes in
advance of buying shares, and the Pensions Board intend to use
them only to hedge interest rate risks inherent in the loan arrangement
for financing the Clergy Retirement Housing Scheme (CHARM).
Section 5 - Amendment of Parochial Church Councils
(Powers) Measure 1956
19. Section 5(2) inserts a new section
3A of the Parochial Church Councils (Powers) Measure 1956, conferring
a power allowing members of a parochial church council("PCC")
to receive benefits undercontracts with their PCC (notwithstanding
the normal rule that charity trustees may not 'profit' from their
position as such) provided certain conditions are met. Based on
a power available to charity trustees generally under the Charities
Act 2011, the new power will enable a PCC member, or a 'connected
person', to be paid for services provided to their PCC under a
contract of employment, or a contract for services, if (amongst
other matters) the remuneration paid is reasonable and only a
minority of the PCC members are benefitting, or connected with
a person who is benefitting, under the power. The power will allow
PCCs to appoint a member or connected person as an employee, subject
to compliance with the specified conditions, without having to
obtain prior authority from the Charity Commission to do so.
20. Section 5(3) amends section 7 of
the 1956 Measure to allow a minister and PCC greater flexibility
in determining the objects to which monies collected in church
are to be allocated. As section 7(iv) currently stands, it requires
the minister and PCC to determine the particular objects - i.e.
the particular destination - for monies collected, whether those
be the general funds of the PCC, one of its restricted funds,
or another named charity or named charities. It does not, for
example, currently make provision to allow the minister and PCC
to determine in general that monies collected at a funeral may
be allocated to any charity that the family of the deceased may
specify. The Legal Advisory Commission, in considering its opinion
on collections and funerals observed that it would be helpful
if the power were more flexible. The amendment is intended to
21. The Charity Commission was consulted
about this amendment and is content with it.
Section 6 - Amendment of Ecclesiastical Jurisdiction
22. Section 6 amends the provisions
in the Ecclesiastical Jurisdiction Measure 1963 thatprescribe
the formal qualifications for appointment as the chancellor of
a diocese and as Dean of the Arches and Auditor. The relevant
provisions currently contained in the 1963 Measure employ statutory
legal qualifications that are based on the number of years a person
has held the right to appear in certain types of court. Those
statutory qualifications are no longer employed in the case of
appointments of judges in the temporal courts and they have effectively
become obsolete. The amendments, instead of specifying a particular
qualification for appointment, provide that a chancellor must
at least have the formal qualifications that a person has to have
in order to be appointed a circuit judge and that the Dean of
the Arches and Auditor must at least have the formal qualifications
that a person must have in order to be appointed a Lord Justice
Section 7 - Amendment of Faculty Jurisdiction
23. Section 7 amends a provision contained
in the Faculty Jurisdiction Measure 1964 that empowers consistory
courts to grant faculties authorising works to monuments that
are owned by persons who withhold their consent to such works
or who cannot be traced. As the provision currently stands the
court is not able to grant such a faculty if the owner of a monument
who withholds his or her consent can satisfy the court that he
or she is willing and able to remove the monument.
24. This is not considered to result
in a satisfactory position because it means that if a court is
presented with a case concerning, for example, a dangerous monument
which a parochial church council wishes to make safe, the court
would be unable to authorise the PCC to make it safe if the owner
(i.e. the heir of the person in whose honour it was set up) showed
that he was in a position to remove the memorial. In those circumstances
the court would have to decide between allowing the memorial to
be permanently removed from the church, and retaining it in the
church in a dangerous state. The provision that constrains the
court in this way is removed by the amendment.
25. The amendment also inserts a new
provision which enables the court to grant a faculty authorising
works to a monument without requiring the petitioner to seek consent
from the owner, or to seek to trace the owner if his or her identity
is not already known, if the matter is of such urgency that it
would not be reasonable to require the petitioner to take those
Section 8 - Amendment of Overseas and Other Clergy
(Ministry and Ordination) Measure 1967
26. Section 8 inserts new provisions
into the Overseas and Other Clergy (Ministry and Ordination) Measure
27. Section 1 of the 1967 Measure currently
empowers the archbishop of the province to grant a permission
to an individual 'overseas clergyman' (this is the defined term
used throughout the 1967 Measure, meaning a person of either sex
ordained priest or deacon by a bishop of a Church outside the
British Isles which is in communion with the Church of England:
making the provision gender-neutral would have entailed rewriting
the whole Measure). A permission enablesthe priest or deacon to
officiate in the province on the same basis as clergy who have
been ordained by a bishop of the Church of England. The power
is routinely exercised to enable clergy from other provinces in
the Anglican Communion to exercise ministry in England. The grant
of a permission under section 1 of the 1967 Measure does not remove
the need for the priest or deacon to obtain a licence or permission
to officiate from the bishop of the diocese where the ministry
is to be exercised where such a licence or permission to officiate
would be required by a member of the clergy of the Church of England.
28. Section 8(2) inserts a new provision
enabling the archbishop to revoke, in writing, a permission granted
to an individual 'overseas clergyman' under section 1 of the 1967
Measure for "any cause which appears to him to be good and
reasonable". However the power to revoke a permission will
not be available in the case of an 'overseas clergyman' who is
a freehold incumbent or who currently holds office on Common Tenure.
The most likely, though not the only, situation in which the power
of revocation will be exercised is the situation where the 'overseas
clergyman' has been disciplined under the Clergy Discipline Measure
2003. The provision is subject to the safeguard that the permission
may not be revoked unless the 'overseas clergyman' in question
has been dealt with under that Measure and has had a penalty of
prohibition for life, removal from office or revocation of licence
imposed on him or her.
29. The power conferred by section 1
of the 1967 Measure is currently limited to granting permissions
to individual priests and deacons. It does not provide for the
grant of general permissions, for example to specified categories
of 'overseas clergymen'. So, for example, when there is a large
number of overseas clergy present in England around the time of
the Lambeth Conference, there is no facility for the grant of
a general permission to such clergy to celebrate the Holy Communion
or to preach if invited to do so by an incumbent. Section 8(3)
inserts a new section 1A into the Measure empowering the archbishop
of the province to grant general permissions, specifying the category
of clergy and the range of ecclesiastical functions to which the
permission relates. Such a permission could be for a specified
period or could be indefinite. The archbishop would be able to
revoke the permission at any time. It will not be possible for
an 'overseas clergyman' to conduct marriages or publish banns
under the authority of such a general permission (an individual
permission still being required for that purpose).
Section 9 - Amendment of Synodical Government
30. Section 9 amends the Church Representation
Rules, contained in Schedule 3 to the Synodical Government Measure,
so that the Chair of the Dioceses Commission, if a lay person,
is an ex officio member of the House of Laity of the General
Synod. (If the Chair is a member of the clergy, equivalent provision
is also being made by Canon for ex officio membership of
the House of Clergy.)
Section 10 - Amendment of Endowments and Glebe
31. This section expands the Commissioners'
powers in order to enable the Commissioners to pay the stipend
and expenses of an archdeacon. The present text of subsection
(1) enables the payment of stipend only and makes no provision
for expenses. This provision was made in response to concern from
certain dioceses that the Commissioners pay expenses for suffragan
bishops, but not for archdeacons, and therefore a diocese that
chooses to appoint an additional archdeacon in place of a suffragan
bishop is placed at a disadvantage.
Section 11 - Amendment of Incumbents (Vacation
of Benefices) Measure 1977
32. The Incumbents (Vacation of Benefices)
Measure 1977 established a process for the removal of a freehold
incumbent in circumstances where there has been a breakdown of
relations in the parish, or where "by reason of age or infirmity"
a priest is no longer able adequately to discharge the duties
of his or her benefice. Cases under the Measure are heard by a
specially appointed tribunal, which makes a recommendation to
the Bishop. The Bishop may, if the tribunal recommends it, dispossess
the incumbent of the benefice.
33. There is presently no procedure
under the Measure for an appeal. It is regarded as good practice
to have an appeal process in any judicial or quasi-judicial process
for the purpose of the Human Rights Act 1998, to ensure that if
the procedure in a particular case is flawed, the person whose
rights are affected by that decision has an opportunity to challenge
34. This provision will be of diminishing
relevance over time as the 1977 Measure applies only to freehold
incumbents and has no application to any office holder on Common
Tenure. However, it will continue in effect for as long as there
continue to be freehold incumbents (which may be for another thirty
years), so it is highly desirable to provide this right of appeal.
Section 12 - Amendment of Patronage (Benefices)
35. Section 12 inserts a new section
16A into the Patronage (Benefices) Measure 1986, so as to provide
a new special procedure for the appointment of a priest in charge
as incumbent when a suspension of the right of presentation, or
restriction on presentation, comes to an end.
36. The purpose of the provision is
to remove the need for the application of the full statutory appointment
procedure contained in Part 2 of the 1986 Measure where all the
interested parties - the patron, the bishop, the parochial church
council and the priest in charge - are agreed that the priest
in charge should become the incumbent of the benefice.
37. Accordingly, the new section 16A
provides for a simplified process. The process is initiated by
the bishop giving formal notice to the registered patron, the
priest in charge and the parochial church council of a proposal
that the priest in charge should be appointed incumbent. It is
then open to the patron to present the priest in charge for admission
to the benefice if two conditions are satisfied:
· the priest in charge states
in writing that he or she is willing to be appointed; and
· the PCC passes a resolution
approving the proposal that the priest in charge should be appointed.
38. Any member of a PCC who is the priest
in charge, his or her spouse or civil partner, the registered
patron or the patron's representative is prohibited from attending
any meeting at which a resolution approving the appointment of
the priest in charge as incumbent is to be considered.
39. The patron is not under any obligation
to present the priest in charge. It remains open to the patron
- as at present - to present someone other than the priest in
charge. If the patron does not present the priest in charge, the
normal statutory appointment process is engaged.
40. Particular provision is made to
deal with the situations where (a) the bishop is the registered
patron, or (b) the right of patronage belongs to the Crown by
virtue of a vacancy in see.
Section 13 - Amendment of Care of Churches and
Ecclesiastical Jurisdiction Measure 1991
41. The existing section 17 of the Care
of Churches and Ecclesiastical Jurisdiction Measure 1991 (which
imposes various restrictions on the granting of faculties that
involve the demolition, or partial demolition, of churches) contains
a number of cumbersome procedural provisions, some of which areno
longer appropriate (such as a requirement for notices to appear
in the London Gazette) and others which could be improved. Most
of the procedural requirements could be removed altogether from
primary legislation (on the basis that the more convenient place
for procedural requirements of that nature was in the Faculty
42. Section 13(2) therefore replaces
section 17 of the 1991 Measure with a simplified provision, omitting
a number of procedural constraints currently contained in section
17. The new section retains the concept of partial demolition
but definesit in a way that would limit the concept so that it
was clear that it did not include the removal of merely ancillary
structures (such as boiler houses, lavatories, chimney stacks
etc.). The requirement that the bishop's consent had to be obtained
before commencing faculty proceedings to authorise demolition
or partial demolition is retained.
43. Section 13(3) amends the power contained
in section 18 of the Care of Churches and Ecclesiastical Jurisdiction
Measure 1991 that enables the chancellor of a diocese to authorise
the emergency demolition of a church. There are doubts as to whether
that power is currently exercisable in the way it was intended
to be when the 1991 Measure was enacted. The amendment made will
ensure that the power is exercisable in any circumstances where
demolition of the whole or part of a church is urgently necessary
in the interests of safety or health or for the preservation of
the church. It will continue to be the case that where the church
is listed or is in a conservation area demolition will not be
permitted if the safety or health concerns or the preservation
of the building can be dealt with by way of repair or temporary
support or shelter. Moreover, the works of demolition must be
limited to those that are immediately necessary. Those two restrictions
are extended by the amendment made in section 13(3)(b) so that
they will also apply to unlisted churches that are not in a conservation
Section 14 - Amendment of Cathedrals Measure 1999
44. Section 14 inserts a new section
17A in the Cathedrals Measure 1999 to enable the Chapter of a
cathedral to pass a resolution to invest its permanent endowment
on a total return basis. This section, and the associated new
Schedule A1 to the 1999 Measure, reflect the provision for other
charities made by the Trusts (Capital and Income) Act 2013 and
the Charity Commission regulations to be made under it. There
had been some discussion in 2012 with the Law Commission and the
Charity Commission of the possibility that provision for cathedrals
might be included in the 2013 Act. The Charity Commission had
no objection in principle to enabling cathedrals to adopt a total
return approach, but the 2013 Act adds two new sections covering
total return investment to the Charities Act 2011, which does
not otherwise apply to cathedrals, as "ecclesiastical corporations"
are excluded from the definition of "charity". Therefore
in the end it was thought better for the Church to make its own
provision for cathedrals.
45. Sections 16 and 17 of the 1999 Measure
restrict, by implication, the Chapter of a cathedral from spending
capital or capital gains and limit them to spending income generated
by the cathedral's permanent endowment. There is a risk that
restrictions of this kind could lead cathedrals to distort their
investment decisions in favour of income-producing assets, which
could lead to erosion of the real value of the permanent endowment
46. The effect of a power to invest
on a total return basis would be that it would not matter in practical
terms, for a cathedral that passed a "total return resolution",
whether returns were received as income or capital gains, as both
types of return would be available for use for the cathedral's
activities or for reinvestment as part of the permanent endowment.
Such a power would not alter the Chapter's fiduciary obligation
to strike a proper balance between support for the cathedral now
and preservation of funds for the future support of the cathedral.
However, it would enable greater flexibility in achieving that
47. The draft regulations published
under the Trusts (Capital and Income) Act 2013 also made provision
for charities to "borrow" up to 10% of their base capital,
in addition to the unapplied total return, for expenditure for
the charity's purposes, and to repay the funds on a timescale
to be agreed by the charity's trustees. This power was omitted
from the provision for cathedrals as it was thought to be potentially
48. The new section provides for cathedrals
to adopt a total return approach to their permanent endowment
if the Chapter is satisfied that it is in the best interests of
the cathedral to do so and passes a resolution accordingly. It
also provides for amendment or revocation of such a resolution,
and introduces the new Schedule A1 to the Cathedrals Measure 1999,
which makes procedural provision for such resolutions. Schedule
A1 may be amended by statutory instrument made by resolution of
the General Synod (an approach which has a precedent in section
7 of the Synodical Government Measure 1969, which makes similar
provision for a schedule containing procedural provisions to be
amended by resolution, rather than requiring a fresh Measure.)
Such a statutory instrument is subject to the Parliamentary negative
Section 15 - Tenure of office of vicars general
49. At common law the office of vicar
general of a province or of a diocese automatically ceases when
a vacancy in the archiepiscopal or diocesan see comes to an end,
unless the appointment has previously been confirmed by the capitular
body of the metropolitical or cathedral church. Section 15(1)
provides that the office of vicar general will not automatically
cease in those circumstances and brings the position in respect
of the office of vicar general into line with the position in
respect of the office of diocesan chancellor. The offices of vicar
general and chancellor are, as a matter of convention,always held
by the same person.
50. The vicar general of each diocese
appoints deputies called surrogates who have jurisdiction in respect
of the grant of marriage licences that are known as 'common licences'.
At common law, the office of surrogate ceases automatically when
the vicar general who appointed the surrogate leaves office. That
is not a convenient situation and section 15(2) provides that
the office of surrogate will not automatically cease in those
Section 16 - Amendment of Dioceses, Pastoral and
Mission Measure 2007
51. Section 16(2) and (3) amend the
powers of the Dioceses Commission under the Dioceses, Pastoral
and Mission Measure 2007 so that a diocesan or suffragan see can
be renamed by a reorganisation scheme and so that a reorganisation
scheme can create new suffragan bishoprics irrespective of whether
that scheme abolishes a diocesan bishopric. These lacunae in the
powers of the Commission became apparent during the drafting of
the scheme creating the new diocese of Leeds (to be known as the
diocese of West Yorkshire and the Dales).
52. Section 16(4) amends the constitution
of the Dioceses Commission contained in Schedule 1to the 2007
Measure so that the Chair of the Commission need not be appointed
from among the existing members of the General Synod.
Section 17 - Power for chancellor to determine
53. Section 17 puts beyond doubt that
the chancellor of a diocese has the power to prescribe the fees
that are payable to the parochial church council or diocesan board
of finance where a faculty is granted for the introduction of
a monument in a church (or for an additional inscription on such
a monument), or for the reservation of a grave space, or for the
construction of a vault. Chancellors have customarily prescribed
the fees payable in those situations but a question has arisen
as to the basis of their power to do so. The Ecclesiastical Fees
Measure 1986 (as amended by the Ecclesiastical Fees (Amendment)
Measure 2011) already made provision for the chancellor to prescribe
the fees payable in other comparable situations. This new clause
should ensure that there is no lacuna in the chancellor's powers.
Section 18 - Power for General Cemetery Company
to dispose of whole or part of Kensal Green Cemetery
54. The statute 2&3 Will. IV c.
cx is a private Act of Parliament"for establishing a General
Cemetery for the Interment of the Dead in the Neighbourhood of
the Metropolis". TheGeneral Cemetery Company, which
was established under section 1 of the Act and which owns and
operates Kensal Green Cemetery, has been involved in discussions
with the Bishop of London concerning plans to lease the consecrated
cemetery chapel to a charity which would then restore and maintain
it. Section 5 of the Act presented a difficulty, however, in
that it made it unlawful for the Company to "sell or dispose
of any Land which shall have been consecrated and set apart for
the burial of the dead". As the chapel is consecrated
and contains vaults for burial, the prohibition on sales and disposals
imposed by section 5 applies to it.
55. Section 18 of the Measure enables
the Company to sell or dispose of (e.g. lease) any such land if
the disposal is authorised by a faculty granted by the London
Consistory Court. Any such sale or disposal would be on such
terms and subject to such conditions as the court determined.
There is a partial precedent for this approach in the provisions
contained in section 68 of the Mission and Pastoral Measure 2011
which empower consistory courts to grant faculties authorising
the leasing of parts of churches.
Section 19 - Provision relating to Christ Church,
56. Section 5 of the Ecclesiastical
Commissioners Act 1840 annexes a (residentiary) canonry at Christ
Church, Oxford to the Lady Margaret's Professorship of Divinity
in the University of Oxford. The Dean and Canons of Christ Church,
following consultation with the Theology Faculty Board of the
University, wished it to be possible for the Lady Margaret's Professorship
to be held either by a residentiary canon or by a lay canon.
57. Section 2(3) of the Church of England
(Miscellaneous Provisions) Measure 1995 already provides for the
Regius Professorship of Ecclesiastical History - to which another
canonry of Christ Church was annexed by section 6 of the 1840
Act - to be held by a residentiary canon or a lay canon.
58. Section 19 replaces the existing
section 2(3) of the 1995 Measure with a new subsection that refers
to both the Regius Professorship of Ecclesiastical History and
the Lady Margaret's Professorship and provides for each of them
to be held either by a residentiary canon or a lay canon.
59. Under section 2 of the 1995 Measure,
a lay canon must be a communicant member of the Church of England,
or a member of a church to which the Church of England (Ecumenical
Relations) Measure 1988 applied and who is entitled lawfully to
take part in public worship in accordance with the forms of service
and practice of the Church of England.
Section 20 - minor and consequential amendments
60. This section gives effect to Schedule
2 to the Measure, which contains minor and consequential amendments
and amendments which clarify ambiguities in the law.
Section 21 - citation, commencement and extent
61. Section 21 provides for the citation
of the Measure and its commencement and extent.
Schedule 1 - Schedule A1 to Cathedrals Measure
62. Schedule 1 contains the new Schedule
A1 to the Cathedrals Measure 1999. This schedule makes provision
relating to the records, annual report and accounts of a cathedral
which has passed a total return resolution.
Schedule 2 - minor and consequential amendments
63. Paragraph 1 repeals section
1(2) of the Ecclesiastical Commissioners Act 1840, which required
the appointment of the First and Third Church Estates Commissioners
to be published in the London Gazette. The appointment of those
Commissioners is now published online, and they also appear on
the Charity Commission register as "charity trustees",
so the requirement for publication in the Gazette has become otiose.
64. Paragraph 2 amends section
17 of the New Parishes Measure 1943 to reflect the fact that diocesan
boards of finance, rather than the Church Commissioners, now have
power to acquire land for purposes set out in section 13 of that
Measure (following amendments made by the Church of England (Miscellaneous
Provisions) Measure 2010), and therefore they need a corresponding
power to dispose of such land.
65. Paragraph 3 makes a number
of amendments to the Church Commissioners Measure 1947, enabling
the Commissioners to make minor changes in their own governance
66. Paragraph 3(2) amends section
4 of the Measure to enable notices and agendas for general meetings
of the Church Commissioners to be sent out by electronic means
as well as by post.
67. Paragraph 3(3) alters the
arrangements for the appointment of a deputy chairman to chair
the Commissioners' Board of Governors in the absence of the Archbishop
of Canterbury. The present provision in section 5(2) of the Measure
provides for annual election by the Board of a deputy chair: the
new provision will enable appointment of a deputy for a period
of up to five years, saving administrative time. Members of the
Board will continue to elect a deputy from among their members
if both the Archbishop and the appointed deputy chairman are absent
from a particular meeting.
68. Paragraph 3(4) amends section
6 of the Measure for the following purposes:
· It renames the Audit Committee
the 'Audit and Risk Committee'.
· It imposes a new duty on
that Committee to review the risks, including financial risks,
to which the Commissioners are exposed.
· It amends the definition
of 'actuary' to reflect the fact that there is now a singleprofessional
body covering England and Scotland (the Institute and Faculty
of Actuaries), rather than a separate body for each.
· It slightly expands the powers
of the Commissioners to make provision in Standing Orders for
delegation to chairs of Committees, their deputies and officers.
69. Paragraph 3(5) expands the
meaning of 'signature' in section 9 of the Measure to include
70. Paragraph 3(6) removes the
requirement for nominated Commissioners to be appointed for a
period of whole years beginning on 1 April.
71. Paragraph 3(7) amends Schedule
1 to the Measure, which makes provision for election of Commissioners
by the General Synod. At present, it is open to members of Synod
to elect a person who is not a Synod member as a Commissioner.
However, anomalously, if a person who is a member of Synod is
elected as a Commissioner and is subsequently not re-elected to
the relevant House of Synod, Schedule 1 presently provides that
the person also ceases to be a Commissioner. The amendment restricts
this effect to the House of Bishops, which can elect Commissioners
only from among its members by virtue of paragraph 1(b) of Schedule
1: a member of the House of Clergy or the House of Laity who ceases
to be a member of Synod will not, in future, also automatically
cease to be a Commissioner.
72. Paragraph 3(8) removes the
requirement for newly appointed lay Commissioners to make a declaration
in person of their membership of the Church of England: the new
provision enables the declaration to be signed and returned to
an officer of the Commissioners at the new Commissioner's convenience.
73. Paragraph 3(9) provides for
the Board of Governors or any Committee of the Commissioners to
make standing orders enabling them to make decisions on proposals
outside meetings by circulating the proposal by post or electronically,
enabling a decision tobe taken on an urgent matter without the
need to call a meeting at short notice.
74. Paragraph 4 amends the Clergy
Pensions Measure 1961. It provides as follows:
· The Church of England Pensions
Board and its committees may delegate functions to officers.
· The Chair of the Board or
of any of its committees may provide for circulation of a proposal
to its members for a decision to be taken outside a meeting, so
enabling a decision to be taken on an urgent matter without the
need to call a meeting at short notice.
· The definition of 'actuary'
is amended to reflect that there is now a single professional
body covering England and Scotland (the Institute and Faculty
of Actuaries), rather than a separate body for each.
75. Paragraph 5 amends the Sharing
of Church Buildings Act 1969. Section 11 of the 1969 Act provides
for any church "represented on the General Council of the
British Council of Churches or on the governing body of the Evangelical
Alliance or the British Evangelical Council" to become a
church to which the Act applies (i.e. a church in respect of which
a sharing agreement under the Act may be made). The General Secretary
of the appropriate body then has to insert a notice in the London
Gazette specifying that the Act applies to the church in question,
and the appropriate authority for sharing agreements.
76. That provision has now become seriously
out-of-date, as the British Council of Churches has changed its
name more than once and is now Churches Together in Britain and
Ireland. It has become an incorporated charity and no longer has
a General Council. The Evangelical Alliance no longer has a representative
governing body, and the British Evangelical Council has now changed
its name to Affinity (though it does still have a representative
77. It is likely that some of the gazettings
of churches in recent years have been made unlawfully, as it would
have been impossible to comply with the requirements of the 1969
Act as it stands. The new section 11 therefore makes provision
for future gazettings to be made in accordance with the new structures,
and also makes retrospective provision (in new subsection (5))
to ensure that past gazettings are treated as always having been
78. Paragraph 5(4) gives effect
to Schedule 3 to the Measure, which amends Schedule 2 to the 1969
79. Paragraph 5(5) deletes an
existing entry in Schedule 2 to the 1969 Act, as the church in
question has changed its name and the new name is included in
the list added by Schedule 3 to the Measure.
80. Paragraph 6 amends section
23 of the Endowments and Glebe Measure 1976.
81. Paragraph 6(2) substitutes
a new section 23(1) of the 1976 Measure. The present text ofsection
23(1) provides that a Diocesan Board of Finance may exercise its
powers under section 14 of the New Parishes Measure 1943 to grant
certain land to the Commissioners. However, such grants are no
longer to be made to the Commissioners under section 14, following
amendments made to the New Parishes Measure by the Church of England
(Miscellaneous Provisions) Measure 2010, and therefore section
23(1) in its present form has become meaningless. The amended
text provides for a Diocesan Board of Finance to grant or appropriate
diocesan glebe land held by it for a purpose specified in section
13(1) of the New Parishes Measure.
82. Paragraph 6(3) repeals section
23(2) and (3) of the 1976 Measure (and, consequentially, section
6(b) of the Church of England (Miscellaneous Provisions) Measure
2010), as those provisions are now redundant.
83. Paragraph 7 makes amendments
to the compensation provisions contained in Schedule 2 to the
Incumbents (Vacation of Benefices) Measure 1977 so that the pensions
provisions refer to the Church of England Funded Pensions Scheme.
84. Paragraph 8 inserts some
additional elements in the definition of "church" in
the Ecclesiastical Fees Measure 1986.
85. Paragraph 9 makes minor amendments
to the Patronage (Benefices) Measure 1986, including amendments
to take account of provision made in section 2 of the Vacancies
in Suffragan Sees and Other Ecclesiastical Offices Measure 2010.
86. Paragraph 10 amends the Church
of England (Ecumenical Relations) Measure 1988.
87. The archbishops have the power,
under the 1988 Measure, to designate churches to which the Measure
- and as a consequence, the ecumenical canons - are to apply.
Section 5 of the 1988 Measure prescribes the criteria that a
Church must satisfy in order to be eligible for designation by
the archbishop as follows-
"(2) No Church shall be designated
under subsection (1) above unless-
(a) the Church subscribes to the
doctrine of the Holy Trinity and administers the Sacraments of
baptism and Holy Communion; and
(b) the Sharing of Church Buildings
Act 1969 applies to the Church at the time of designation or,
in the case of a Church outside the United Kingdom, it is nominated
by the General Synod for the purposes of this section by resolution."
88. The new paragraph (b) inserted by
paragraph 10 replaces the requirement relating to the Sharing
of Church Buildings Act 1969 ("the 1969 Act") with a
different requirement. It would leave the existing paragraph
(a) in place.
89. Certain provisions in the 1969
Act had become ineffective owing to the way in which at least
one of the ecumenical bodies which is responsible for 'gazetting'
Churches under the Act (the statutory means by which the Act is
applied to Churches) had reorganised itself under a new constitution.
This was through inadvertence rather than design but the result
was that it was not currently possible for the 1969 Act to be
applied to some Churches which would formerly have qualified.
A further consequence of that was that it was not possible for
some Churches with whom the Church of England might wish to enter
into formal ecumenical relationships to be designated by the archbishops
under the 1988 Measure.
90. The amendment uncouples the criteria
for designation of Churches by the archbishops from the machinery
of the 1969 Act. However, the underlying policy remains the same
- namely that the Church in question should be a member of one
of the 'ecumenical instruments', thereby demonstrating that it
is committed to ecumenical goals and that it has the necessary
organisational identity to enter into formal ecumenical relationships.
The amended text therefore requires that the Church in question
belong to one of the following ecumenical bodies (or 'ecumenical
(a) Churches Together in Britain
(b) Churches Together in England;
(c) The Evangelical Alliance; or
91. In order to deal with the possibility
of future reorganisation of the ecumenical instruments, membership
of a body which is determined by the archbishops to be the successor
of any of the above bodies will satisfy the requirement.
92. Paragraph 11 amends the Planning
(Listed Buildings and Conservation Areas) Act 1990 tomake it clear
that chapels in episcopal houses of residence that are subject
to the faculty jurisdiction receive the benefit of the ecclesiastical
exemption from listed building consent.
93. Paragraph 12 amends the Pensions
Measure 1997 to confer on the Business Committee thepower to decide
whether rules in relation to the funded pension scheme may be
considered by the General Synod under the 'deemed procedure' and
to amend the definition of 'actuary' to reflect that there is
now a single professional body covering England and Scotland,
rather than a separate body for each.
94. Paragraph 13 amends the National
Institutions Measure 1998.
95. Paragraph 13(2) provides
for section 2(3) of the 1998 Measure to put beyond doubt that
the power of the Archbishops' Council to apply or distribute sums
made available by the Church Commissioners includes power to distribute
those sums to dioceses for them to apply as they think most appropriate.
The amendment also makes clear that this has always been the effect
of section 2(3).
96. Paragraph 13(3) removes the
requirement that the Standing Orders of the General Synod must
always provide for at least one-third of the members of the Appointments
Committee to be members of the Archbishops' Council. Whilst there
is no current proposal to amend the Standing Orders to remove
the requirement to that effect contained in SO 116, the amendment
will confer greater flexibility to adjust the position in future
if circumstances require it and the Synod agreed the necessary
change to SO 116 (e.g. in the event that the membership of the
Council was reduced in size and in those circumstances it was
no longer considered desirable for four of the Council's members
to have to serve on the Appointments Committee).
97. Paragraph 13(4) provides
for the Council and its committees to delegate functions to officers
and to make decisions on proposals outside meetings by circulating
the proposal by post or electronically, so enabling a decision
to be taken on an urgent matter without the need to call a meeting
at short notice.
98. Paragraph 14 amends the Cathedrals
Measure 1999 to provide that where the guardianship of the spiritualities
of a province or bishopric belonged to the Dean and Chapter of
a cathedral, it is to belong to the corporate body of the cathedral
(i.e. the body corporate created by the cathedral's constitution
and statutes in accordance with the 1999 Measure, the members
of which are the members for the time being of the Council, the
Chapter and the College of Canons). It is to be exercisable by
the Chapter on behalf of the corporate body.
99. Paragraph 15 amends section
5 of the Churchwardens Measure 2001 to provide that the Church
Representation Rules may make provision about the procedure for
meetings of parishioners under that section, and that the meeting's
power to adjourn and to determine its own rules of procedures
is subject to any provision in the Church Representation Rules.
100. Paragraph 16 amends paragraph
5 of Schedule 6 to the Dioceses, Pastoral and Mission Measure
2007 to require an instrument varying a reorganisation scheme
to be sent to the Church Commissioners, the Dioceses Commission
and the registry of the diocese.
101. Paragraph 17 amends section
3 of the Ecclesiastical Offices (Terms of Service) Measure 2009.
102. Paragraph 17(a) corrects
an omission in section 3(a) by adding to the list of events which
serve to terminate an office held on Common Tenure the resignation
of a bishop or archbishop under section 1 or 4 of the Bishops
(Retirement) Measure 1986.
103. Paragraph 17(c) confers
on a bishop the power to revoke the licence of a deaconess, reader
or licensed lay worker who holds office on Common Tenure, by reason
of that person's misconduct. Under section 1(1)(h) of the 2009
Measure any deaconess, reader or lay worker who receives a stipend
or other emoluments of office now holds office on Common Tenure.
Lay office holders are not subject to the Clergy Discipline Measure
2003 or the Ecclesiastical Jurisdiction Measure 1963 and section
3 currently contains no means by which the office of a lay person
who is subject to common tenure may be terminated by reason of
misconductas opposed to capability. This amendment makes such
provision. Corresponding amendments to the relevant Canons confer
a right of appeal to the archbishop of the province on the lay
office holder if his or her office is terminated in these circumstances.
104. Paragraph 18 repeals a provision
in the Church of England (Miscellaneous Provisions) Measure 2010,
as a decision has now been made that the relevant provision should
not be brought into force. It also makes provision putting beyond
doubt the effect of a repeal that was contained in that Measure.
· Paragraph 19 amends
the Mission and Pastoral Measure 2011 for a number of purposes.It
makes minor amendments conferring rights to be consulted about
a scheme on clergy holding office on Common Tenure, even where
those clergy do not receive emoluments or accommodation. It also
removes the requirement to delay the coming into force of a scheme
if the only person whose office is abolished by the scheme is
entirely self-supporting (i.e. not in receipt of a stipend or
· It extends the powers under
a pastoral scheme to make provision for the transfer of a parsonage
house for specified purposes or for its disposal, so that in future
the power will also apply to a house, or part of a house, which
is held as part of the diocesan glebe land but was formerly a
· It makes provision enabling
the Churches Conservation Trust to make gifts to anothercharitable
foundation, with the consent of the Church Commissioners
· It extends the purposes for
which the Temporary Maintenance Account (an account maintained
by the Church Commissioners for the purpose of the "care,
insurance, repair or maintenance" of closed church buildings)
can be used. Those purposes will now include applications for
planning permission or listed building consent, and funding demolition.
In consequence it also changes the name of the account to reflect
its expanded range of purposes.
· It enables the service of
· It amends the provisions
contained in Schedule 4 of the 2011 Measure that are concerned
with compensation of the clergy who lose office as a result of
pastoral reorganisation so that the pensions provisions refer
to the Church of England Funded Pensions Scheme, and to make it
clear that a person whose periodical payments under that schedule
are suspended is not deemed to be in pensionable service during
the period of suspension.
105. Paragraph 20 amends the
definition of 'actuary' in regulation 2(1) of the Church of England
Pensions Regulations 1988 to reflect that there is now a single
professional body covering England and Scotland (the Institute
and Faculty of Actuaries), rather than a separate body for each.
Schedule 3 - churches added to Schedule 2 to Sharing
of Church Buildings Act 1969
106. This Schedule lists those churches
which have been "gazetted" under section 11 of the Sharing
of Church Buildings Act 1969, together with the "appropriate
authority" which has power to give various consents under
the 1969 Act.
On behalf of the Legislative Committee
Canon Peter N. E. Bruinvels
7 January 2014
1 Charities and Investment Matters: a guide
for trustees': CC14 (http://www.charitycommission.gov.uk/detailed-guidance/money-and-accounts/charities-and-investment-matters-a-guide-for-trustees-cc14/) Back