Church of England (Miscellaneous Provisions) Measure passes in Commons – debate

14.05.12 DLC 1On 12th May 2014 the Church of England (Miscellaneous Provisions) Measure was passed by the House of Commons, after being scrutinised by MPs in a delegated legislation committee. A transcript of the debate, led by the Second Church Estates Commissioner Rt Hon Sir Tony Baldry MP, is below. A video of the session can also be viewed on the UK Parliament website, here.

Background: Church of England Measures, passed by the Church’s General Synod need to be agreed separately by both Houses of Parliament before they become law. They are considered first by Parliament’s Ecclesiastical Committee, before being passed to both Houses for approval. In the Commons this is usually led by the Second Church Estates Commissioner, and often in a delegated legislation committee of the House. In the Lords this is led by a bishop and is taken on the floor of the House.

Click here to view the text of the Church of England (Miscellaneous Provisions) Measure (pdf file), and here for the report from the Ecclesiastical Committee, which met and considered it expedient in February 2014.

Transcript:

Fifth Delegated Legislation Committee

Monday 12 May 2014

[Mr Jim Hood in the Chair]

Church of England (Miscellaneous Provisions) Measure

The Second Church Estates Commissioner (Sir Tony Baldry): I beg to move,

That the Committee has considered the Church of England (Miscellaneous Provisions) Measure (HC 1273).

This is the 11th Church of England (Miscellaneous Provisions) Measure. Such Measures, which are produced by the General Synod roughly once every five years, contain a range of unconnected provisions that are either necessary or helpful for the good governance of the Church of England and, crucially, are not regarded as contentious. The Measure is squarely in that tradition, as can be seen from the fact that it obtained final approval in General Synod without a single person voting against it.

This is the longest ever miscellaneous provisions Measure, and it clarifies or simplifies legislation in a number of areas. Time is too limited for me to mention all or even most of the changes, so I will highlight one or two. The comments and explanations prepared on behalf of the legislative committee of the Synod provide valuable background to all the provisions of the Measure, should anyone require further detail on a particular one.

First, the Measure includes a number of provisions modernising the administration of the national Church institutions—the Archbishop’s Council, the pensions board and the Church Commissioners—enabling the circulation of documents by electronic means and the taking of urgent decisions outside meetings.

Secondly, the Measure contains provisions to increase Church bodies’financial flexibility. Section 4 makes provision confirming that the Church Commissioners have the power to buy derivatives, which, in a portfolio valued at £6.1 billion, are a valuable tool for managing investment risk. The commissioners use derivatives only in accordance with the Charity Commission’s guidance, which confirms that they may properly be included in a balanced and diversified portfolio when a charity holds substantial funds, as the commissioners do. Section 14 makes provision for key cathedrals to pass a resolution to manage their endowments on a total return basis if they wish to do so, bringing them into line with all other charities.

Finally, the Measure includes a number of provisions relating to the clergy and to the ecclesiastical courts, simplifying existing processes, dealing with lacunae in legislation such as the lack of a right of appeal in the Incumbents (Vacation of Benefices) Measure 1977, and dealing with doubts that have arisen as to the proper interpretation in existing law. I commend the Measure to the Committee.

Karl Turner (Kingston upon Hull East) (Lab): I do not wish to detain the Committee for long, but I want to pay tribute to the continued work of the General Synod and the Church of England. The phrase “one nation” is often used in this place, and when one considers the nature and the structure of the Church of England, I think that Members of all faiths and none can, without controversy, pay tribute to the way in which the Church of England, through its parish, deanery and diocesan structure, serves every part of England.

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Opposition Members are in agreement with the Measure, but I would like to raise four short, probing points. First, section 2 amends the Burial Act 1857. The offence of removal of a body from burial ground strongly reiterates an issue that is of great concern to loved ones of the deceased, and it is good to see that stated in black and white. However, does the Church Commissioner believe that the provisions cater fully for the situation in which—as may happen for economic reasons or reasons to do with land—land by a church can be sold off or graves moved? The provisions in the Measure are rightly strict, but I ask the Church Commissioner to comment, because he will realise that that sensitive matter may be of concern to relatives of the deceased.

Secondly, section 4 concerns the power of the Church Commissioners and pensions board to enter into contract discussions regarding types of investment. In the light of pronouncements by the archbishop and the General Synod on ethical investments, is the Church Commissioner satisfied that the section is in keeping with their views on the subject?

Thirdly, section 11, which amends the Incumbents (Vacation of Benefices) Measure 1977, refers specifically to the right of appeal against the findings of a tribunal. Does the Church Commissioner feel that the rights of Church councils are sufficiently protected by the Measure? From my reading of the document, they seem to be, but in this place, we need to be mindful of the rights of the small units of the established Church.

Fourthly and finally, as Members will be glad to hear, I come to section 13—the amendment of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. Clearly, the demolition of much-loved Church buildings can often be a sensitive matter in local communities, but as many of us will know from our constituencies, sometimes practical issues, such as the reduction of numbers in congregations or an unsustainable cost for what may be a very old building, necessitates a closure. Sometimes we see churches operate in partnership with housing associations and the like, so that much-needed housing is built, as is a new church—sometimes financed, at least in part, through a developer’s agreement. Does the Church Commissioner believe that the provision is balanced in that it is sufficiently flexible so that parishes, deaneries and dioceses may maintain their buildings in a way that is appropriate to the ministry of a modern, nationwide Church?

I thank the Church Commissioner in advance for what I know will be his thorough and thoughtful comments on the Measure.

Dr Sarah Wollaston (Totnes) (Con):  I want to raise a point on section 2, on the amendment of the Burial Act 1857. Has the Church Commissioner considered the critical shortage of burial places? In Kingsbridge in my constituency, there are only 16 places left. All the measures available have been instituted, such as using plots that have not been taken up and clearing extra ground in cemeteries, but we are now reaching a critical shortage, and I gather that the situation is repeated around the country. Will the Church Commissioner update us on any progress on the various consultations that have taken place over the years?

Sir Tony Baldry:  I thank the hon. Member for Kingston upon Hull East for his kind comments, particularly about the Church of England as a whole, and I thank my hon. Friend the Member for Totnes for her question. Let me take them in order.

The amendment to the Burial Act 1857 has a narrow compass. The article amends the Act by substituting a new section. The effect will be that in those cases where it is currently necessary to obtain a faculty and a licence from the Secretary of State, or both an approval under the Care of Cathedrals Measure 2011 and a licence from the Secretary of State, only a faculty or an approval under the Measure will be required in future. Essentially, 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. It is a narrow point. The hon. Gentleman raised a concern about graveyards not being properly regarded or considered. I do not think that he needs to be concerned that the change will in any way affect the legislation in relation to the various steps that have to be taken if, for some reason, there is a suggestion of a burial ground being built on or dislodged. It is simply a proceduralpoint.

On the point made by my hon. Friend, the legislation does not deal with burial grounds. The provision of burial grounds traditionally has not been a matter for the Church—recently, it has been a matter for the state. Slightly counter-intuitively, when a churchyard is full, responsibility for it passes across to the parish council or the town council to maintain. However, she is absolutely right, because she has identified what I suspect is something of a lacuna in the legislation about who is responsible for making provision for new cemeteries and new burial ground places. In my constituency, in Bicester, there are difficulties. Land around the towns is valuable as development land—farmers and landowners are not keen to give up land for new burial grounds—and it can be quite a challenge for district or town councils to provide new burial space. That important point is not particularly covered by the Measure.

14.05.12 DLC 3Mr Barry Sheerman (Huddersfield) (Lab/Co-op):  Part of my question has been answered by the right hon. Gentleman. Until about a week ago, at my advice service, I knew nothing about this subject, but I suddenly had a constituent come in who wanted to be buried next to his wife. What rights one has to choose a burial plot is complicated, but I understand that this Measure will not touch that. Who has the right to allow or stop someone being buried next to a relative is a complex area.

Sir Tony Baldry: I entirely agree with the hon. Gentleman, but it is not part of this Measure.

Section 4 is intended to put beyond doubt that the Church Commissioners and the Church of England pensions board have the power to enter into derivatives contracts in relation to the commissioners’corporate property and the pensions board’s charitable funds. 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 needed very clear authority to be able to enter into a derivatives contract, and that, ideally, the authority should expressly mention derivatives. That requires legislative amendment as the investment powers of both the Church Commissioners and the pensions board are governed by statute. All the investments made by the Church Commissioners are always covered by advice that we receive from the ethical investment advisory group, and, of course, the Church Commissioners are a charity, so everything we do is subject to approval by the Charity Commission.

On the amendment to the Incumbents (Vacation of Benefices) Measure 1977, 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 purposes of the Human Rights Act—for exactly the reasons the hon. Member for Kingston upon Hull East made clear in his comments—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 it. This effectively provides for an appeal process.

The 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 obviously right to provide the appeal.

The last point that the hon. Gentleman raised was on the amendments to the Care of Churches and Ecclesiastical Jurisdiction Measure 1991. Again, this is not about the Church Commissioners wanting to go around knocking down large numbers of churches. It really is a simplifying provision to remove procedural constraints when necessary. For example, the existing section 17 of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 contains several cumbersome procedural revisions, some of which are no longer appropriate, such as a requirement for notices to appear in the London Gazette, and some of which could be improved. Most of the procedural requirements could be removed altogether from the primary legislation, so this is very much a tidying-up Measure.

Not only did the Measure go through the General Synod with not a single vote against it—would that that were the case on so many other Measures in General Synod —but it has been through the Ecclesiastical Committee, which is made up of Members of both Houses of Parliament.

Mr Sheerman: The hon. Gentleman knows of my interest in this subject as a lay canon at Wakefield. I am always worried when anyone says, “This is just to tidy things up.” We have all seen dreadful things happen to beautiful churches in our constituencies when they become carpet warehouses and so on. As a journalist pointed out the other day, I live in an old textile mill and own a church and a pub, so I have a vested interest in nice things happening to churches, rather than them becoming ghastly carpet warehouses and the like. Will the Measure weaken or strengthen the protection of beautiful churches?

 Sir Tony Baldry: It will not weaken protection. I assure the hon. Gentleman that a lengthy statutory process must be followed before any church can be declared redundant or sold. Sadly, as in the case of some Victorian churches, congregations do sometimes move on or there can be a surplus of church spaces and there is no alternative but to sell a church.

Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab): I just want to thank the right hon. Gentleman. I have been in this House for 27 years and did not know that there was an Ecclesiastical Committee made up of Members of both Houses.

Sir Tony Baldry: It is one of those hidden secrets. I must confess that when the Ecclesiastical Committee was being set up, I—being something of a control freak—submitted a list to Mr Speaker of those on both sides of the House who I thought would make a good contribution to it, which they have done. It is an important Committee and later this year will be scrutinising the Measure on women bishops, which I hope will come from the General Synod in July. It is an important Committee, it does good work and is part of the settlement of 1919, when it was decided that Parliament would no longer have primary responsibility for Church legislation, which was handed initially to the Church Assembly, which then became the General Synod.

I commend the Measure to the House.

Question put and agreed to.

4.47 pm

Committee rose.

(via Parliament.uk)

The Committee consisted of the following Members:

Chair: Mr Jim Hood

Baldry, Sir Tony (Second Church Estates Commissioner)

Blunkett, Mr David (Sheffield, Brightside and Hillsborough)(Lab)

Bradshaw, Mr Ben (Exeter)(Lab)

Cairns, Alun (Vale of Glamorgan)(Con)

Evennett, Mr David (Lord Commissioner of Her Majesty’s Treasury)

Halfon, Robert (Harlow)(Con)

Hemming, John (Birmingham, Yardley)(LD)

Lavery, Ian (Wansbeck) (Lab)

Lewell-Buck, Mrs Emma (South Shields)(Lab)

Offord, Dr Matthew (Hendon)(Con)

Percy, Andrew (Brigg and Goole)(Con)

Shannon, Jim (Strangford)(DUP)

Sheerman, Mr Barry (Huddersfield)(Lab/Co-op)

Turner, Karl (Kingston upon Hull East)(Lab)

Watson, Mr Tom (West Bromwich East)(Lab)

Wollaston, Dr Sarah (Totnes)(Con)

Wright, Simon (Norwich South)(LD)

Zahawi, Nadhim (Stratford-on-Avon)(Con)

John-Paul Flaherty,Committee Clerk

† attended the Committee

The following also attended, pursuant to Standing Order No. 118(2):

Spelman, Mrs Caroline (Meriden) (Con)