Judgments - Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire (Appellants) v Wallbank and another (Respondents)

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    143. In reaching their conclusion the Court of Appeal held that the PCC was indeed a "public authority" in terms of section 6 of the 1998 Act. While a number of other issues were argued in the hearing of the appeal to your Lordships' House, none of them arises unless the PCC is indeed to be regarded as a public authority for this purpose.

    144. Section 6 provides inter alia:

    "(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

… (3)

    In this section "public authority" includes -

    (b) any person certain of whose functions are functions of a public nature….

    (5) In relation to a particular act, a person is not a public authority by virtue only of subsection 3(b) if the nature of the act is private."

The use of the word "includes" in subsection (3) shows that there are public authorities other than persons only certain of whose functions are of a public nature. So there must be persons who are public authorities because all their functions are of a public nature. These are sometimes referred to as "core" public authorities, as opposed to "hybrid" authorities, only certain of whose functions are public and some of whose acts may be private in nature. In view of my overall conclusion on the appeal I have not found it necessary on this occasion to explore the significance of the distinction between the two kinds of public authorities.

    145. In deciding that the PCC was to be regarded as a public authority, the Court of Appeal first noted that in the area of judicial review the cases at present draw a conceptual line between functions of public governance and functions of mutual governance. But the Court of Appeal could detect no surviving element of mutuality or mutual governance as between the impropriator and the church in the modern liability for chancel repairs: the relationship in which the function arose was created by a rule of law and a state of fact which were independent of the volition of either of them: [2002] Ch 51, 62H - 63C, para 34. In the hearing before the House Mr George did not argue the contrary. The Court of Appeal continued, at p 63, para 35:

    "In our judgment it is inescapable, in these circumstances, that a PCC is a public authority. It is an authority in the sense that it possesses powers which private individuals do not possess to determine how others should act. Thus, in particular, its notice to repair has statutory force. It is public in the sense that it is created and empowered by law; that it forms part of the church by law established; and that its functions include the enforcement through the courts of a common law liability to maintain its chancels resting upon persons who need not be members of the church. If this were to be incorrect, the PCC would nevertheless, and for the same reasons, be a legal person certain of whose functions, chancel repairs among them, are functions of a public nature. It follows on either basis by virtue of section 6 that its acts, to be lawful, must be compatible with the rights set out in Schedule 1 to the Human Rights Act 1998."

The Court of Appeal's main conclusion therefore was that the PCC was a core public authority. Alternatively, it was a hybrid authority, some of whose functions were public - among them enforcing the impropriators' obligation to pay for chancel repairs.

    146. There is no doubt that, in terms of section 2(1) of the Chancel Repairs Act 1932, the PCC is an authority - more precisely, "the responsible authority". For present purposes, however, the question is whether the PCC should be regarded as a public authority in terms of section 6. Parliament has chosen to use a composite phrase "public authority". There are therefore distinct dangers in interpreting it by breaking it down and examining the two components separately. Be that as it may, the Court of Appeal considered each of the two elements in turn.

    147. They first held that the PCC was an "authority" for purposes of section 6 because it had powers which private individuals do not possess to determine how others should act - the relevant example being its power to serve a notice to repair which has statutory force. That is a somewhat imprecise criterion for identifying an authority, however. When a police officer arrests an offender, his act is that of a public "authority" irrespective of whether or not the arrest is one that a private citizen could have effected. Moreover Parliament can, if it wishes, invest private individuals with quite remarkable powers over their fellow citizens. For instance, section 391 of the Burgh Police (Scotland) Act 1892, now repealed, provided:

    "It shall be lawful for any householder, personally or by his servant, or by a constable of police, to require any street musician or singer to depart from the neighbourhood of the house of such householder; and every person who shall continue to sound or play any instrument, or sing in any street, at any time after being so required to depart, shall be liable to a penalty not exceeding twenty shillings."

A paterfamilias standing in evening dress at the entrance to his New Town residence could address an order to an organ-grinder to depart from the vicinity, or his butler could issue it from the top of the area steps. In either event, the organ-grinder would commit an offence under the section if he continued to play in the street. But if, instead, they had summoned a constable who had issued the same instruction with exactly the same effect, he would unquestionably have been an "authority" - and indeed a "public authority". The existence or non-existence of the equivalent statutory power in the householder and his servant would not be germane to the constable's status. So the fact that no individual possesses the power to issue a statutory repair notice with specific effects on the lay rector cannot in itself be sufficient to show that the PCC is to be regarded as an authority for the purposes of section 6.

    148. The Court of Appeal drew attention to three features which they thought pointed to the PCC being a "public" authority for purposes of section 6: the PCC is created and empowered by law; it forms part of the church by law established and its functions include the enforcement through the courts of a common law liability to maintain the chancel resting upon persons who need not be members of the Church.

    149. It is necessary to look a little more closely at the Court of Appeal's observation that the PCC "is created and empowered by law". The origins of PCCs can be traced back to the movement that began in the nineteenth century for greater self-government and better representation of the laity in the Church of England. Part of the problem was that, while the Convocations of Canterbury and York could pass canons which were binding on the clergy, any wider legislation had to be by Act of Parliament and Parliament passed only relatively few of the Acts for which the Church asked. In 1916 a special committee set up to look into the question recommended the formation of a Church Council with power to legislate on ecclesiastical matters. Eventually, after further work by another committee, the necessary scheme was approved by the Convocations of Canterbury and York. Both Convocations adopted identical addresses which were presented to King George V on 10 May 1919. The text is to be found in the Acts of the Upper and Lower Houses, Convocation of Canterbury, 6 May 1919, Upper House, Official Year Book of the Church of England 1920, p 193. Attached to the addresses was an appendix (Official Year Book of the Church of England 1921, p 16) setting out the constitution of what was now called the National Assembly of the Church of England. Paragraph 17 of the constitution provided that, before entering on any other legislative business, the Assembly should make further provision for the self-government of the Church by passing through the Assembly two measures, the second being to confer "upon the Parochial Church Councils constituted under the Schedule to this Constitution such powers as the Assembly may determine."

    150. The necessary machinery for giving Assembly measures legal effect was created later that year when Parliament passed the Church of England Assembly (Powers) Act 1919. Under section 4, measures passed by the Assembly and submitted to the Ecclesiastical Committee of Parliament would, on being approved and receiving the Royal Assent, have the force and effect of an Act of Parliament. In accordance with that procedure, the National Assembly proceeded to pass the Parochial Church Councils (Powers) Measure 1921. The preamble duly records that the measure was passed to fulfil a requirement of the constitution of the National Assembly to

    "make further provision for the self-government of the Church by passing through the Assembly Measures inter alia for conferring on the Parochial Church Councils constituted under the Schedule to such Constitution such powers as the Assembly may determine."

    151. As the preamble shows, just like the National Assembly itself, the PCCs were actually constituted when the scheme, comprising the constitution of the National Assembly and the schedule of rules for the representation of the laity, was approved by the Convocations of Canterbury and York. The function of the 1921 Measure was, accordingly, not to constitute or "create" the PCCs but to confer powers on them. The same division survives today. The rules for the representation of the laity, including those relating to PCCs, are to be found in schedule 3 to the Synodical Government Measure 1969, while the powers of PCCs are now in the Parochial Church Council (Powers) Measure 1956. Like section 3 of the 1921 Measure, section 3 of the 1956 Measure provides for the PCC to be a body corporate. Section 2 of the 1921 Measure made it "the primary duty of the council in every parish to co-operate with the incumbent in the initiation and development of Church work both within the parish and outside", while section 2 of the 1956 Measure, which was inserted by section 6 of the 1969 Measure, confers rather more elaborate general functions on the council. I come back to that section shortly.

    152. On closer examination, therefore, the process by which the PCCs were constituted and received their powers is really very different from the way in which a public body such as the Equal Opportunities Commission is created and given its powers by statute. In a case of that kind, the fact that the body owes both its existence and its powers to statute may well indicate that it has been called into existence to carry out some function that relates to the government of the country in a broad sense. By contrast, the PCCs were not constituted by statute but by the Church. They then became bodies corporate and received their powers not by virtue of an Act of Parliament but by virtue of an Assembly Measure, having the force and effect of an Act of Parliament. These factors suggest that, in reality, PCCs were constituted by the Church to carry out functions to be determined by the National Assembly, later the General Synod, of the Church.

    153. The Court of Appeal pointed next to the PCC being part of the Church by law established. In his submissions on behalf of Mr and Mrs Wallbank Mr Beloff QC embellished this argument. The Church of England - with Her Majesty the Queen at its head, with bishops appointed by the Queen on the recommendation of the Prime Minister, with the legislation of General Synod receiving the Royal Assent and having the force and effect of an Act of Parliament and with the civil power being available to enforce the judgments of its courts - was so woven into the fabric of the state that it should be regarded as a core public authority for purposes of section 6. Then, since "the parish is the basic building block of the church" (M Hill, Ecclesiastical Law, (2nd ed (2001), p 74), the PCC too should be regarded as a core public authority - whatever might be its precise functions in terms of section 2 of the 1956 Measure.

    154. I would reject that argument. In this case the House is not concerned with any theological doctrine of establishment such as gave rise to one of the issues in General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515. Mr Beloff's argument centred, rather, on the general position of the Church of England in English law. The juridical nature of the Church is, notoriously, somewhat amorphous. The Church has been described as "an organised operative institution" or as "the quasi corporate institution which carries on the work" of the Church of England: In re Barnes Simpson v Barnes [1930] 2 Ch 80, 81 note. Whether or not such an institution itself could ever count as a public authority in terms of section 6, I see no basis upon which a body within the Church, which would not otherwise be regarded as a public authority, could be impliedly invested with that character simply by reason of being part of the wider institution.

    155. On the other hand, the 1956 Measure passed by the National Assembly of the Church casts light on the nature of the functions of a PCC. Under section 2(1) its duty is to consult with the minister on matters of general concern and importance to the parish. By section 2(2) the PCC's general functions include:

    "(a) co-operation with the minister in promoting in the parish the whole mission of the Church, pastoral, evangelistic, social and ecumenical;

    (b) the consideration and discussions of matters concerning the Church of England or any other matters of religious or public interest, but not the declaration of the doctrine of the Church on any question;

    (c) making known and putting into effect any provision made by the diocesan synod or the deanery synod, but without prejudice to the powers of the council on any particular matter;

    (d) giving advice to the diocesan synod and the deanery synod on any matter referred to the council;

    (e) raising such matters as the council consider appropriate with the diocesan synod or deanery synod."

In addition to these general functions, by virtue of section 4 the PCC is given powers, duties and liabilities which formerly vested in the churchwardens. These focus very much on the parish church and its affairs. In particular, under section 4(1)(b) the PCC has powers, duties and liabilities with respect to the care, maintenance, preservation and insurance of the fabric of the church and of its goods and ornaments. By section 7(ii) the PCC has power to levy and collect a voluntary church rate for any purpose connected with the affairs of the parish church.

    156. The key to the role of the PCC lies in the first of its general functions: co-operation with the minister in promoting in the parish the whole mission of the Church. Its other more particular functions are to be seen as ways of carrying out this general function. The mission of the Church is a religious mission, distinct from the secular mission of government, whether central or local. Founding on scriptural and other recognised authority, the Church seeks to serve the purposes of God, not those of the government carried on by the modern equivalents of Caesar and his proconsuls. This is true even though the Church of England has certain important links with the state. Those links, which do not include any funding of the Church by the government, give the Church a unique position but they do not mean that it is a department of state: Marshall v Graham [1907] 2 KB 112, 126 per Phillimore LJ. In so far as the ties are intended to assist the Church, it is to accomplish the Church's own mission, not the aims and objectives of the government of the United Kingdom. The PCC exists to carry forward the Church's mission at the local level.

    157. Against that background the adjective "private" is not perhaps the one that springs most readily to mind to describe the functions of a PCC in the Church of England either generally or as compared, for instance, with those of a church council in the Methodist Church. It might therefore be tempting to conclude that the PCC's functions must be "public" and that the PCC must itself be a "public" authority for the purposes of the 1998 Act. At this point it becomes necessary to look more closely at the meaning of the composite expression "public authority" in section 6. This in turn takes one back behind the Act to the Convention itself.

    158. The "High Contracting Parties" to the Convention were "the governments signatory" to the Convention, more particularly "the governments of European countries" having certain common characteristics. In the fourth recital to the Convention they reaffirmed their profound belief in those rights and freedoms which are the foundation of justice and peace in the world and which are best maintained by a common understanding and observance of the human rights upon which they depend. The governments gave concrete expression to the beliefs and aspirations recorded in the recitals by undertaking in article 1 to secure to everyone within their jurisdiction the rights and freedoms set out in section 1 of the Convention. It can reasonably be inferred from the terms of the recitals and article 1 that the freedoms, and the rights on which they depend, relate to the powers and responsibilities of the governments which are parties to the Convention.

    159. That inference is confirmed by article 34 which provides that the European Court of Human Rights ("the European Court")

    "may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

    I respectfully agree with the Court of Appeal, [2002] Ch 51, 62, para 33, that, taken together, articles 1 and 34 assume the existence of a state which stands distinct from persons, groups and non-governmental organisations. I would go further: the reference in article 1 to the rights and freedoms defined in section 1 of the Convention only makes sense if the state in question is exercising a range of functions which are, in a broad sense, governmental - and to which the rights and freedoms in section 1 can therefore relate. Long ago, the functions of government were usually confined to defending the realm and keeping the peace. Nowadays, in addition, they commonly cover such matters as education, health and the environment. The exact range of governmental power will vary, of course, from state to state, depending on the history of the particular state and the political philosophy of its government. Similarly, the distribution of governmental power will depend on the constitutional arrangements of the individual states. In some, the central government will retain most functions, in others power will be shared on some kind of federal system, while, in most at least, some functions will be allotted to local or community bodies. Irrespective of these and other possible permutations, under article 1 of the Convention the states parties are responsible for securing that all bodies exercising governmental power within their jurisdiction respect the relevant rights and freedoms. This approach underlies the admissibility decision of the Fourth Chamber of the European Court in Ayuntiamento de Mula v Spain, 1 February 2001, unreported.

    160. The obligation under article 1 has bound the United Kingdom ever since the Convention came into force. Since 1966 individuals have been able to bring proceedings in Strasbourg to ensure that the United Kingdom complies with that obligation. Prima facie, therefore, when Parliament enacted the 1998 Act "to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights", the intention was to make provision in our domestic law to ensure that the bodies carrying out the functions of government in the United Kingdom observed the rights and freedoms set out in the Convention. Parliament chose to bring this about by enacting inter alia section 6(1), which makes it unlawful for "a public authority" to act in a way that is incompatible with a Convention right. A purposive construction of that section accordingly indicates that the essential characteristic of a public authority is that it carries out a function of government which would engage the responsibility of the United Kingdom before the Strasbourg organs.

    161. Mr Beloff accepted, of course, that, in order to achieve the government's declared aim of bringing rights home, in the legislation which it placed before Parliament the term "public authority" must have been intended to include all bodies that carry out a function of government that would engage the responsibility of the United Kingdom in Strasbourg. But, he said, that was simply a minimum. The government and, more particularly, Parliament could well have intended to go further and to include other public bodies, even though their acts would not engage the international responsibility of the United Kingdom. It would therefore be wrong to limit the scope of "public authority" in section 6 to bodies exercising a governmental function of the state, however loosely defined. Mr Beloff could not point to any authoritative statement showing that Parliament had intended the 1998 Act to have this wider effect. But he argued that, if Parliament had meant to limit the legislation to bodies carrying out a function of government, the natural thing would have been to use some such term as "a governmental authority" or "a governmental organisation" - which would mirror the term "non-governmental organisation" to be found in article 34 of the Convention. That was how the draftsman of the Act had proceeded in section 7(7) when he provided that a person was to be a "victim" of an unlawful act for the purposes of the section only if he would have been a victim for the purposes of article 34 in proceedings before the European Court in respect of that act. Not only had the draftsman not adopted a similar approach in section 6(1): when an attempt had been made to amend the Bill so as to align the domestic test with the test adopted by the European Court in interpreting the Convention, the government had opposed it and the amendment had failed.

    162. I see no proper basis for referring to Hansard as an aid to construing the term "public authority" in section 6. But it appears that, in advancing this particular argument, Mr Beloff had in mind the amendments moved by Mr Edward Leigh MP and discussed by the Home Secretary during the Commons committee stage of the Bill: 17 June 1998, Hansard House of Commons Vol 314, coll 400, 418 - 425 and 432 - 433. Since the Convention is concerned with the obligations of the governments of the states parties, it does not define the domestic bodies whose acts engage the liability of those governments. Moreover, the jurisprudence of the Strasbourg court on the point is not extensive. A definition of the relevant public bodies in the 1998 Act by reference to the approach of the Strasbourg court would therefore not have been particularly workable. Keith J made much the same point in relation to the Hong Kong Bill of Rights in Hong Kong Polytechnic University v New Magazine Publishing Ltd [1996] 2 HKLR 260, 264B - F. According to the Home Secretary, because of these problems and in an attempt to replicate the situation under the Convention, the government chose the term "public authority" to indicate that the body concerned was to be sufficiently public to engage the responsibility of the United Kingdom. If - contrary to my view - the House could properly derive assistance from the fate of these amendments, it would lie in the confirmation that, in promoting the Bill, the government intended to give people rights in domestic law against the same bodies as would engage the liability of the United Kingdom before the Strasbourg court.

    163. In the present case the question therefore comes to be whether a PCC is a public authority in the sense that it carries out, either generally or on the relevant occasion, the kind of public function of government which would engage the responsibility of the United Kingdom before the Strasbourg organs. It so happens that there are two cases from Strasbourg dealing with the position of churches in this regard. They suggest that, in general, church authorities should not be treated as public authorities in this sense.

    164. The first case is Holy Monasteries v Greece (1994) 20 EHRR 1. On the basis of various provisions of the Convention, including article 1 of the First Protocol, the applicant monasteries challenged a Greek statute which changed the rules of administration of their patrimony and provided for the transfer of a large part of their estate to the Greek state. The links between the Greek Orthodox Church and the Greek state were particularly close. In Greek law the Holy Monasteries were public law entities that could be founded, merged or dissolved by means of a decree of the President of Greece. Another public law entity, under the supervision of the ministry of education and religious affairs, was responsible for managing the property belonging to the monasteries. In these circumstances the Greek government stated, as a preliminary objection to the Holy Monasteries' application, that they were not a non-governmental organisation which could make an application as a victim in terms of article 25(1) (now article 34) of the Convention. Repelling that objection, the European Court held, at p 41, para 49:

    "Like the Commission in its admissibility decision, the court notes at the outset that the applicant monasteries do not exercise governmental powers. Section 39(1) of the Charter of the Greek Church describes the monasteries as ascetic religious institutions. Their objectives - essentially ecclesiastical and spiritual ones, but also cultural and social ones in some cases - are not such as to enable them to be classed with governmental organisations established for public administration purposes. From the classification as public law entities it may be inferred only that the legislature - on account of the special links between the monasteries and the state - wished to afford them the same legal protection vis à vis third parties as was accorded to other public law entities. Furthermore, the monastery councils' only power consists in making rules concerning the organisation and furtherance of spiritual life and the internal administration and furtherance of spiritual life and the internal administration of each monastery.

    The monasteries come under the spiritual supervision of the local archbishop, not under the supervision of the state, and they are accordingly entities distinct from the state, of which they are completely independent.

    The applicant monasteries are therefore to be regarded as non-governmental organisations within the meaning of article 25 of the Convention."

While the positions of the Holy Monasteries and of a PCC are scarcely comparable, the judgment of the European Court is important for its reasoning that the nature of the objectives of the monasteries was not such that they could be classed with "governmental organisations established for public administration purposes". The court also attached importance to the fact that the monasteries came under the spiritual supervision of the local archbishop rather than under the supervision of the state, as an indication that they were entities distinct from the state.

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