The Judicial Committee of the Privy Council Decisions

Cheesman v. Church Commissioners (Pastoral Measure 1983) [1999] UKPC 12 (17th March, 1999)

Reverend A.F.B. Cheesman and Others Appellants

v.

The Church Commissioners Respondents

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 17th March 1999

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Lord Lloyd of Berwick

[Majority Judgment delivered by Lord Hobhouse of Woodborough]

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1. This is an appeal brought by the Reverend Ashley Cheesman and eleven others against the decision of the Church Commissioners dated 5th January 1998 to make the Pastoral Scheme proposed by the Bishop of Leicester for part of the Diocese of Leicester purportedly under the Pastoral Measure 1983. When leave was given for this appeal to be brought it was on the ground whether the Bishop and the Church Commissioners were in the circumstances of this case "entitled to proceed under the Pastoral Measure 1983". It thus raises a question of law concerning the construction and application of the 1983 Measure.

 

2. The Scheme will affect no fewer than four adjacent benefices. It involves the redistribution of parishes among them, including the creation, or rather, the re-creation of two former separate parishes. The feature of the Scheme which has given rise to this appeal is its sub-division of the single parish known as the "Gaulby Group" into three parts, two of which were to be transferred to adjoining benefices and only one of which was to remain in the Gaulby benefice of which Mr. Cheesman is the incumbent. Such a redistribution of parishes can only be made using the powers granted by the 1983 Measure. These powers include the power to provide (section 17(1)):-

"(a) for the creation, whether by union or otherwise, of new benefices or parishes;

 

(b) for the dissolution of existing benefices or parishes;

 

(c) for the alteration of the areas of existing benefices or parishes (including the transfer of a parish from one benefice to another) or the definition of their boundaries."

 

3. The Scheme does not exceed these powers. Therefore, provided that the Scheme is, in the words of the title of the Measure, a scheme "designed to make better provision for the cure of souls" and the statutory procedures have been followed, the Scheme is one which the Bishop and the Commissioners are entitled to make. The consent of the various incumbents, provided that the prescribed consultation procedures etc. have been followed, is not a prerequisite nor need the Commissioners wait for the vacation of a benefice before dissolving it (section 25(1)).

 

4. The present appeal does not raise any question of the bona fides of the Pastoral Committee of the Diocese, the Bishop or the Commissioners. It is accepted that they believe that the Scheme does make better provision for the cure of souls in the Diocese and that it is within the powers open to them under the Measure. The appellants submit that their belief is mistaken. The attack which the appellants make upon the Scheme is based upon the submission that the Bishop and Commissioners, in so far as they seek to reduce the size of the Gaulby Group benefice, are in truth seeking to exercise powers which can only be exercised under the Incumbents (Vacation of Benefices) Measure 1977. That is a Measure which (to quote from its long title) makes provision including:-

"… provision for the vacation of the benefice, where there has been a serious breakdown of the pastoral relationship between an incumbent and his parishioners or where an incumbent is unable by reason of age or infirmity to discharge adequately the duties attaching to his benefice ..."

 

5. "Breakdown" means and is confined to the breakdown of the pastoral relationship between the incumbent and his parishioners (section 1A, section 19A). The question raised by this appeal is whether their Lordships’ Board should uphold the Scheme under the 1983 Measure.

 

6. The correct approach of this Board to the disposal of appeals from decisions of the Church Commissioners in relation to pastoral schemes has been restated in Hargreaves v. Church Commissioners [1983] 2 AC 457, 460. It is not a judicial review; it is a genuine appeal process. The appeals must be heard on their merits. But the Board must have in mind that the scheme has the support of responsible bodies within the Church of England which in some cases, and the present is such a case, have considered and weighed the very objections now being urged in support of the appeal. Lord Scarman on behalf of the Board said (referring to the Pastoral Measure 1968 which was re-enacted with some revisions by the 1983 Measure):-

"Nevertheless, the elaborate process of making a scheme set out in sections 3 to 7 of the Measure, a process which begins with a review by the pastoral committee of the diocese, requires the approval by the bishop of the committee’s recommendations, and the decision of the Church Commissioners first to prepare a draft scheme and later, after considering any written representations made to them, to make the scheme itself, underlines the very careful consideration demanded of the Church authorities throughout all its stages. By the time a scheme is brought to the attention of the Judicial Committee on appeal it will represent, unless there has been some irregularity or departure from the statutory process, the fully considered view of those charged by law with providing for the cure of souls in the diocese and with protecting, so far as practicable, the traditions, needs and characteristics of individual parishes, which are the two matters to which the Measure requires the pastoral committee to have regard ‘at all times’: section 2(2). In this process the bishop of the diocese has the vital role: no scheme can go forward without his approval."

 

7. The procedures referred to are those now set out in Part I of the 1983 Measure. Part I of the Measure places a duty upon the pastoral committee of the diocese to review the arrangements for pastoral supervision in the diocese and to report and make recommendations to the bishop for pastoral schemes. The committee is thus required at all times to have particular regard to the making of provision for the cure of souls in the diocese as a whole (including the spheres of work etc. of those so engaged) and to have regard to the traditions, needs and characteristics of individual parishes (section 2(3)) and to carry out the consultations stipulated in section 3.

 

8. Their Lordships stress the nature of the proceedings before this Board since the appellants’ case has been argued, at least in part, as if it was a pure question of law upon the extent of the powers under the 1983 Measure whereas it is actually whether the Scheme can and should be upheld under the 1983 Measure. If, however, it were the correct construction of the 1983 Measure that the Bishop and the Commissioners were debarred from proposing or making any scheme under that Measure in any situation where it was possible to invoke and obtain relief, albeit different relief, under the 1977 Measure, then it would follow that, in such a situation, a scheme under the 1983 Measure could not be upheld. It is therefore necessary that their Lordships should examine the validity of the appellants’ legal submission.

 

9. In their Lordships’ judgment the submission cannot be sustained. First, as a matter of the construction of the 1983 Measure, that measure was a consolidating re-enactment with some revisions of the pre-existing legislation, in particular the Pastoral Measure 1968. It has for present purposes the same effect and scope as the 1968 Measure which it replaced. It cannot and should not be construed by reference to the powers introduced by the 1977 Measure. The power to make a pastoral scheme was the same before and after the 1977 Measure was enacted. The principal purpose of the 1977 Measure was to introduce, subject to important qualifications and safeguards, the remedy of vacation of benefice where there has been serious pastoral breakdown or incapacity. The 1977 Measure was in effect a measure which extended the powers granted under the Ecclesiastical Jurisdiction Measure 1963. The 1963 Measure, in continuation of earlier legislation, included the essentially disciplinary power to impose a sentence of deprivation upon clergymen who had committed an ecclesiastical or serious criminal offence.

 

10. The 1977 Measure is based on considerations of incompetence or inadequacy on the part of the incumbent evidenced by a serious breakdown of pastoral relations between the incumbent and the laity in a benefice. The inquiry required is directed not only to whether there has in fact been such a breakdown but also to whether it is attributable to deficiencies on the part of the incumbent. The breakdown in relations may, for example, have been attributable to parishioners not the incumbent. A declaration of the vacation of the benefice, i.e. the total deprivation of the incumbent of his freehold, can only be justified if both these criteria have been satisfied. It is this structure which makes the implementation of the 1977 procedures so cumbersome and uncertain in outcome. The remedy of vacation of benefice necessarily involves criticism of the incumbent; the investigation of the seriousness of the breakdown and the responsibility for it are inevitably involved. Its character is different from that of the 1968 and 1983 Measures. The powers are different: the criteria are different. The 1977 Measure does not qualify the 1983 Measure. Any scheme proposed or made under the 1983 Measure must be justified under the terms of that Measure. If it is justified, it should be upheld; if it is not, it cannot be upheld.

 

11. The primary legal submission of the appellants must therefore be rejected. But the validity of the submission is also open to objection on another ground. Mr. Cheesman strenuously disputes that there is or ever was any basis for the declaration of the vacation of his benefice. He contested at every stage by every means open to him the proceedings brought against him under the 1977 Measure. It cannot be right as a matter of law that the mere opinion of the Bishop that those proceedings if carried through to their conclusion ought to (but not necessarily would) have resulted in the vacation of Mr. Cheesman’s benefice disqualifies the Bishop from proposing a scheme under the 1983 Measure if he genuinely believes that it can be justified under that Measure; nor can it preclude the Commissioners from making the scheme if they are satisfied under the 1983 Measure that it should, on its merits, be made.

 

12. The appellants have advanced a second legal argument to the same end. They submit that any "interpersonal" factor should be wholly excluded from the assessment of the merits of any proposed scheme under the 1983 Measure. Thus it is argued that, if the Bishop or the Commissioners have taken into account the personal characteristics of Mr. Cheesman, they have exceeded their powers because such considerations fall exclusively within the purview of the 1977 Measure. Interpersonal factors cannot be included in the justification of a pastoral scheme.

 

13. This argument can be accepted at a certain level but not at the level at which it is necessary for the appellants to put it as a submission of law. It is right that, if the sole purpose of and the sole change made by a scheme was the vacation of a benefice because of objections to the incumbent, the scheme could not be upheld. A broader perspective is required by the 1983 Measure both in relation to the problems it addresses and the changes it makes. As their Lordships will shortly explain, the Scheme under appeal does do both these things. The legal argument, if it is to assist the appellants, has to be made good at the level of saying that any scheme under the 1983 Measure must be justified in terms which are wholly neutral as to the identity of any given incumbent: the scheme’s justification must wholly exclude any reference to or consideration of who are the incumbents of the benefices affected.

 

14. The difficulties about the submission put in this way is that it seeks to qualify the 1983 Measure and (implicitly) its 1968 predecessor in a way which is not supported by the language of those Measures. The criterion to be applied is what will make the best provision for the cure of souls in the diocese. The powers which may be used are as previously quoted. It is a confusion to say that there is a different power given by the 1977 Measure exercisable on different criteria. For the exercise of the powers granted by the 1983 Measure (and its predecessor), the criterion is the more general one and does not include the exclusion contended for. It can also be seen that the exclusion would often give rise to difficulties in practice. Some arrangements of parishes, particularly in these days of benefices including a number of parishes or former parishes and the use of teams, inevitably create situations which may or may not be satisfactory from a pastoral point of view depending upon the gifts of the persons from time to time involved. Incumbents of exceptional gifts may be able to make certain combinations of parishes work when less gifted persons cannot. To exclude all consideration of the contributions to the successful cure of souls in the diocese that the incumbents of the benefices affected could make would be to adopt an artificiality which finds no support in the drafting of the legislation and would obstruct its purpose. Further, if the actual position is to be disregarded, what is the assumption which the Bishop and the Commissioners are required to make? Are they to postulate some "average" incumbent and then make their assessment on that basis disregarding the fact that the present incumbents do not and no incumbent is ever likely to equate to that average? This point has only to be stated in order to see that the argument cannot be sustained.

 

15. Similarly, the interpersonal difficulties may be between parishioners or parishes; their traditions, needs and characteristics have to be taken into account. Thus, it may become apparent that a previous combination of parishes or scheme for a team is not working regardless of whether or not the incumbent is to be criticised. Such problems fall outside the scope of the 1977 Measure which is solely concerned with the deficiency or incapacity of the incumbent and his personal responsibility. Splits and other differences between parishes or parishioners can only be addressed and remedied under the 1983 Measure. Invoking the 1977 Measure in respect of them will be misconceived and a waste of time and money: see sections 1A and 19A.

16. There are traces of another argument, particularly in the attractive submissions of the 12th appellant, Mr. Blythe, which seeks to resist the power of the Bishop to concern himself with the cure of souls within a parish against the wishes of the incumbent and assert an over-riding right of the incumbent, subject only to the 1963 and 1977 Measures, to decide about the cure of souls within his parish or parishes. It is also submitted that it is contrary to principle that the incumbent should lose the cure of any of the souls within his benefice without his consent. These submissions are incompatible with the express terms of the 1983 Measure but, in any event, they over-state the relevant fundamental principles. It is the bishop who has the cure of souls throughout the diocese and the sole and exclusive cure of souls that the incumbent has within the parish is under the bishop. (Halsbury’s Laws of England 4th edition, Vol. 14 (1975) p 265 para. 535 and p 269 para. 541.) The organisation of the diocese into parishes is for the ease and benefit of the people not the incumbent (Britton v. Standish, (1704) Holt K.B. 141). Provided that the scheme is on its merits justified for the better cure of souls within the diocese, it does not violate these principles.

 

17. Their Lordships therefore reject the legal arguments of the appellants. However it is still necessary to examine the Scheme and the reasons given by the Commissioners for making it in order to see whether it is on its merits justified under the 1983 Measure. As a matter of the changes made by the Scheme, they are changes which could only be made under the 1983 Measure; the Scheme does not exercise powers granted by the 1977 Measure. It is submitted that the effect of the Scheme is equivalent to vacating Mr. Cheesman’s benefice. This argument is clearly unsustainable. He will be left with a benefice which, although seriously reduced in population, still includes 4 churches and what once were either 3 or 4 rural parishes. He has had the extent of his cure of souls reduced but that is within the contemplation and powers of the 1983 Measure, as is the fact that he may not have agreed to such reduction. His benefice has not been vacated. If it be relevant, his financial entitlements have not been altered. The point, therefore, comes back to the question whether the Scheme should be upheld on its merits.

 

18. The line of attack recognised as arguable when leave to appeal was given is that the justification for the Scheme was essentially the interpersonal one of seeking to resolve a supposed problem with Mr. Cheesman personally and not one which was based on making better provision for the cure of souls in the diocese. It is therefore necessary to look carefully at the reasons given by the Commissioners for their decision to see whether they provide a proper and adequate basis for that decision.

 

19. The background to this line of argument is the situation with which the Bishop, Bishop Butler, was faced when he assumed the Bishopric of Leicester in July 1991. There was a Parish called the Gaulby Group which had resulted from a number of amalgamations. In 1982 a pastoral scheme had combined two previous benefices so as to make a single benefice comprising 3 parishes with six parish churches and one chapel of ease extending over some 15 square miles of rural Leicestershire. In 1988, pursuant to a further pastoral scheme, the three parishes were combined into the single parish. Mr. Cheesman had become the incumbent of the combined benefice shortly before, in February 1988. There were some signs of impending trouble around this time which included questions about the validity of the parish representation scheme and some eight months later the resignation of one of the churchwardens. There were others who thought the new parish was working well. However in January 1989 Mr. Cheesman was charged with an offence of indecency and in the following September convicted by the magistrates. He was suspended under the 1963 Measure. In June 1990 a two thirds majority of the Parochial Church Council requested the institution of proceedings under the 1977 Measure. Mr. Cheesman challenged the validity of the constitution of the PCC. In October 1990 Mr. Cheesman’s conviction was overturned by the Divisional Court on the ground that one element in the offence (annoyance of the public) had not been proved: Cheesman v. Director of Public Prosecutions [1992] Q.B. 83. The Archdeacon then commenced further proceedings against him under the 1963 Measure; the Archdeacon also progressed the invocation of the 1977 Measure. Mr. Cheesman continued to be suspended. The Reverend Ian Phelps had the interim care of the parish.

 

20. Bishop Butler therefore, on his arrival in July 1991, was rightly concerned with the future pastoral situation in the parish and tried to agree a satisfactory solution with Mr. Cheesman. In August Mr. Cheesman’s suspension was terminated; the 1977 Measure proceedings were put on hold pending further discussions. But these led nowhere and in November 1992 the proceedings under the 1977 Measure were resumed. Mr. Cheesman requested, as he was entitled, full formal proceedings. These were very drawn out and were dogged by procedural problems. In January 1994, when it became clear that they could only continue if started afresh before a new panel, the Bishop decided that enough was enough and ordered their discontinuance. But the Bishop was still left with the pastoral problem. In May 1994 he met with the parishioners of the parish. Three church councils requested him to review the arrangements for pastoral supervision including reviewing the pastoral scheme which had established the Gaulby Group. Apparently there were still disputes about the legality of the appointment of churchwardens. The Diocesan Pastoral Committee were also concerned about the position in other benefices nearby and it was agreed that a working party should be set up to investigate, report and make recommendations on appropriate pastoral arrangements for the area covered by four benefices, of which one was Gaulby. The formal terms of reference made it clear that the working party were to consider the effectiveness of the 1982 and 1988 schemes, to advise upon arrangements for pastoral supervision and the cure of souls in the four benefices and have regard to the provisions of sections 2 and 3 of the 1983 Measure. This was a bona fide investigation in accordance with the 1983 Measure and in no way was it an attempt to reopen proceedings under the 1977 Measure.

 

21. The report of the working party in September 1994 led to further consultations which continued for some 12 months and in turn led to the circulation of draft proposals for a new pastoral scheme and further consultations. Bishop Butler submitted the proposed scheme, as recommended by the Diocesan Pastoral Committee, to the Commissioners in September 1996 under section 4 of the 1983 Measure. The Commissioners then over a period of 15 months followed the procedures required by the 1983 Measure receiving representations and evidence from parishioners and obtaining the Bishop’s response to points that had been raised or which they wished to investigate further. The Commissioner’s subcommittee visited the area and obtained further comments and evidence from those concerned. It concluded that it should recommend to the Pastoral Committee that a Scheme should be made in accordance with the draft proposed. The Scheme was adopted by the Commissioners in December and submitted to Her Majesty in Council for confirmation in January 1998.

 

22. The Commissioners’ grounds for making the Scheme are contained in a document dated 5th January 1998. They refer to the almost equal numbers of parishioners supporting and opposing the Scheme and set out the evidence and arguments in opposition of Mr. Cheesman. It is to be noted that the arguments of Mr. Cheesman and other objectors included the contention that the Measure was "being used improperly as an alternative to proceedings under the … [1977] Measure at the behest of a small but influential and vociferous group opposed to Mr. Cheesman". The point argued on the present appeal was therefore clearly raised before the Commissioners, just as it was expressly raised by them with the Bishop. The grounds also summarise the representations in favour of the Scheme. In one of the former parishes included in the amalgamated parish, two thirds of the population supported the Scheme complaining of the absence of certain parochial activities, difficulties in the structure of the PCC, inability to meet the parish share; they also referred to some parishioners preferring to worship outside the parish and to their desire to be combined with a different adjoining parish. Similar points were made on behalf of another former parish. Thus, the Commissioners recorded that there was a split of opinion with arguments and counterarguments being advanced by the supporters of the Scheme and by those who objected to it, including the fundamental objection to the Scheme raised by Mr. Cheesman and others already adverted to.

 

23. In expressing their conclusions the Commissioners set out their grounds in 10 numbered paragraphs. They were satisfied that "the existing parish of the Gaulby Group was no longer a workable pastoral unit". Despite a superficial similarity, they "were not a natural social and geographical grouping but looked in different directions". They concluded that different groupings would work better. This reasoning has been criticised by the appellants but it is clearly relevant and required as part of the consideration of the traditions, needs and characteristics of the various parishes. They weighed up the positive advantages which would arise from different groupings, they discussed how they would affect congregation sizes and whether they would alleviate the existing parish’s financial difficulties. The conclusions were that there would be positive advantages.

 

24. They grasped the nettle whether the proposal was merely a disguised attack upon Mr. Cheesman. They said:-

25. "The Commissioners accepted that there were inherent tensions and clear social differences within the Group which had been apparent even during the time of the previous incumbent, who was widely regarded as having succeeded through an exceptional personal charisma, and the creation of the united benefice of Gaulby in 1982 now appeared to them to have been a failed experiment, exacerbated by the union of parishes in 1988. For these reasons they considered that the division of the existing benefice of Gaulby would be appropriate even without the present interpersonal difficulties briefly summarised below." (Para. (1).)

 

26. This passage has also been criticised. But its reasoning is impeccable and it was supported by the evidence collected by the Commissioners (and the Diocesan Parochial Committee and its subcommittee before them). A grouping together of diverse parishes which can only be held together by men of exceptional personal charisma is not a stable arrangement nor can it satisfactorily provide for the cure of souls in the long run. It must be reiterated that difficulties arising from differences between parishioners do not come within the scope of the 1977 Measure nor does Mr. Cheesman’s lack of exceptional personal charisma involve a criticism of him.

 

27. In a passage in paragraph (2), strongly relied upon by the appellants, the Commissioners adverted to the "interpersonal difficulties" referred to in paragraph (1). They pointed out that "reorganising the parish as proposed in the draft Scheme would broadly reflect the de facto position whereby the bulk of those who felt that Mr. Cheesman did not offer them appropriate pastoral care or did not choose to receive the care which he offered lived in the villages which would be transferred out of the Gaulby Group". It was suggested that, notwithstanding what had been said in paragraph (1), this passage was a further indication that the desire to deal with these interpersonal difficulties was the primary motive for the Scheme. However, reverting from the particular to the general, the Commissioners immediately went on to say: "It would thus more accurately reflect the geographical and sociological reality of the area".

 

28. In paragraph (3) the Commissioners reminded themselves that the purpose of a scheme under the 1983 Measure must be "to make better provision for the cure of souls" but reiterated that in their judgment such considerations required the making of the Scheme. They examined and rejected the allegations of bias made by Mr. Cheesman. They accepted the Bishop’s assurance that his proposals were not intended as a means of disciplining Mr. Cheesman and noted that they stemmed from the report of the Diocesan Pastoral Committee’s Working Party. They concluded that the working party’s terms of reference had not prejudged its conclusions and that the draft Scheme, in addition to alleviating the pastoral problems in the Gaulby Group, was also appropriate in terms of providing pastoral care across the whole of the Gartree I and II deaneries and had been proposed in that context.

 

29. Given that the good faith of the Committee, the Bishop and the Commissioners is now accepted and the fact that there was evidence upon which the Commissioners could reach the conclusions which they did, that is conclusive for this appeal: it should be dismissed.

 

30. The remainder of the paragraphs setting out the Commissioners’ grounds deal with various arguments which were advanced by Mr. Cheesman and other objectors. All these were properly for assessment by the Commissioners and, following Hargreaves, do not provide grounds for disapproving the Scheme.

 

31. The arguments of the appellants have drawn heavily upon certain views expressed at the time when it was having to be decided whether the proceedings against Mr. Cheesman under the 1977 Measure should be abandoned. These indicate that it was appreciated that if a satisfactory scheme under the 1983 Measure could be prepared which sufficiently addressed the pastoral problems undoubtedly existing, there would be no need for continued proceedings under the 1977 Measure. This was no more than a statement of the obvious and disclosed no error of law. If no such scheme could properly be proposed under the 1983 Measure or if there was bad faith, then the resultant scheme could not stand: but that is not and never has been this case. Similarly statements to the effect that there was no need or merit in adopting an inappropriate and disproportionate approach to the practical situation with which they were faced do not invalidate the use of the appropriate procedure when that has been identified. It is also right, and in the circumstances unsurprising, that at various stages throughout the consultations and deliberations that preceded the proposal of the Scheme there are references to difficulties perceived by some to have been created by Mr. Cheesman but that does not invalidate the decisions ultimately made by the Committee, Bishop and Commissioners unless it can be shown that they were the basis for those decisions. As their Lordships have pointed out they expressly were not.

 

32. For every quotation selected by the appellants there were other quotations which could be taken from the documents in evidence. These fully confirm the very high level of good faith displayed by the Bishop and the integrity of the consultations which were taking place. There are express confirmations of the honesty and objectivity of the working party, of the evidence that there were distressing divisions between the laity within the combined parish evidenced by important and handicapping disputes, the fact that these divisions were now so deep as to be irreconcilable and prevent the proper functioning of parish life. The Bishop was himself very conscious of the legitimate rights of Mr. Cheesman as the incumbent of the benefice: it was recorded that the Bishop often reminded people that Mr. Cheesman was the freehold incumbent with rights and responsibilities and had been convicted of no offence in a court of law. The Bishop’s view was that the structural difficulties and the antagonism between the lay people in the parish were such that the draft Pastoral Scheme had become a necessity.

 

33. All this serves to rebut the criticisms made by the appellants and demonstrate further that the Scheme was one which could only be made under the 1983 Measure. The rearrangement of parishes could only be achieved under that Measure. The causes of the pastoral problems addressed were ones which fell exclusively within the 1983 Measure and would simply have served to defeat any continued proceedings under the 1977 Measure. The fundamental problem was the earlier combination of incompatible parishes and the disputes between parishioners and the irretrievable divisions to which that combination had given rise.

 

34. It follows that the attack on the validity of this Scheme fails and the appeals should be dismissed. Their Lordships will humbly advise Her Majesty accordingly.

 

35. In conclusion, however, their Lordships wish again to make clear that in their opinion the 1983 Measure cannot properly be invoked as a device where the real purpose is to deprive an incumbent of his benefice or to punish him or where it is solely intended to remedy a breakdown of the pastoral relationship between the incumbent and his parishioners by means covered by the 1977 Measure, i.e. the vacation of his benefice. The present Scheme is not such a scheme. In their Lordships’ judgment it properly fell within the scope of the 1983 Measure and was properly made under it. Their Lordships’ decision should not be understood as sanctioning any disregard of the statutory safeguards to which the incumbent is entitled under the 1977 Measure where his benefice is to be vacated.

 

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The issue

36. This appeal concerns seven small villages in the diocese of Leicester. The largest, Burton Overy, has 243 parliamentary electors. The smallest, Carlton Curlieu, has 37. The others are Gaulby 89, Little Stretton 61, Kings Norton 61, Illiston-on-the-Hill 143 and Shangton 96. Their Lordships gave leave to appeal in order to examine an important and difficult question as to the validity of a proposed scheme under the Pastoral Measure 1983.

 

 

Background

37. By a previous scheme made on 10th March 1982 under the Pastoral Measure 1968, the villages were united in a single benefice, called the Benefice of Gaulby. Their Lordships were informed that there was little if any opposition to the scheme at the time. The first incumbent of the united benefice was the Reverend Roger Wakely. There was evidence that he succeeded in getting the villages to work well together as a group. One newcomer to the district had been impressed by "the unity of all the churches". However it was said that Mr. Wakely would be a hard act to follow. Sadly this proved to be the case.

 

38. The Reverend Ashley Cheesman became incumbent in February 1988. It appears that he had been one of three applicants for the benefice. The other two had dropped out at the last moment. Mr. Cheesman had previously been curate at an inner city parish in Birkenhead. It soon became apparent that Mr. Cheesman’s ministry was not to everybody’s liking. Within eight months the churchwarden of St. Peter’s Gaulby had resigned, because of Mr. Cheesman’s "excessively evangelistic approach in the pulpit", and his perceived failure to meet the pastoral needs of his parishioners.

 

39. Then came the event which has accentuated discord within the parish. On 30th January 1989 Mr. Cheesman was charged with wilfully and indecently exposing himself in a public lavatory in Abbey Park, Leicester. On 26th September 1989 he was convicted, having given no evidence in his own defence. He was duly suspended from his duties under section 77 of the Ecclesiastical Jurisdiction Measure 1963. However on 19th October 1990 Mr. Cheesman’s conviction was quashed on the ground that the prosecution had failed to prove an essential element in the offence, namely, annoyance to the public. The only witnesses present in the public lavatory were two police officers. Upon his conviction being quashed, his suspension lapsed. But a complaint was made the same day under section 14 of the Ecclesiastical Jurisdiction Measure by the Archdeacon of Leicester, charging Mr. Cheesman with the ecclesiastical offence of conduct unbecoming the office and work of a clerk in Holy Orders, and a fresh suspension was issued the same day by the acting Bishop of Leicester.

 

40. Meanwhile a number of Mr. Cheesman’s parishioners had written to the Bishop requesting an inquiry under section 1 of the Incumbents (Vacation of Benefices) Measure 1977 on the ground that there had been a serious breakdown of the pastoral relationship between Mr. Cheesman and his parishioners. The acting Bishop appointed the Archdeacon of Loughborough to carry out an investigation under section 3 of the Measure.

 

41. The Archdeacon had meetings with the church wardens on 12th and 20th November 1990, and with representatives of the seven villages on 22nd and 27th November. On 11th December he had a meeting with Mr. Cheesman. Two days later he wrote to the acting Bishop to state his preliminary findings. These were that:-

"… the support for the incumbent shown by a few parishioners is far outweighed by the vast majority view that serious breakdown over a substantial period not only exists, but is irretrievable."

 

42. On 24th December 1990 he wrote again:-

"It is not for me … to anticipate the findings of an official inquiry. My task … is to satisfy myself that in terms of Part I of the Measure, there is sufficient evidence to warrant an inquiry into the pastoral situation in the benefice. Perhaps the strongest reason leading me to believe that there is, is the realisation that there is no common ground between the incumbent and most of his parishioners as to whether there is a breakdown or not. When very many believe there is such a breakdown, and give chapter and verse to support their assertion, and the incumbent believes that all is well except for the activities of a very small minority of malicious ill-wishers, it is clearly time for an impartial panel to examine the evidence and judge accordingly."

 

43. There can be no doubt at all that by the end of 1990 there was sufficient evidence of a serious breakdown in the pastoral relationship to justify an inquiry under Part I of the Incumbents (Vacation of Benefices) Measure. Although the Measure has many enemies, and an inquiry under the Measure should always be regarded as a remedy of last resort, nevertheless it provided the obvious remedy in 1990. Nobody at that stage suggested that the pastoral situation could or should be resolved by reversing the 1982 scheme. Nobody suggested that the villages of Burton Overy, Carlton Curlieu and Shangton should be carved out of Mr. Cheesman’s freehold benefice by a new scheme under the Pastoral Measure, thus reducing the size of the parish of Gaulby from a population of 850, or thereabouts, to under 400, and reducing the electoral roll from 205 to 59. Yet this is the effect of the scheme which is now submitted by the Commissioners for confirmation by Her Majesty in Council.

 

44. On 1st July 1991 the Rt. Rev. Thomas Butler was appointed to fill the vacant see of Leicester. He arranged to meet Mr. Cheesman within a few days. He decided that there was no reason to continue with the proceedings under the Ecclesiastical Jurisdiction Measure. Suspension for 18 months had been punishment enough. He also offered to suspend proceedings under the Incumbents (Vacation of Benefices) Measure in the hope that Mr. Cheesman might be willing to accept an alternative living. Unfortunately all the Bishop’s efforts came to nothing. On 2nd November 1992 the proceedings against Mr. Cheesman were restored.

 

45. Under section 5 of the 1977 Measure an inquiry is to be conducted by a diocesan committee of inquiry or, at the incumbent’s option, by a provincial tribunal. Mr. Cheesman chose the latter. Accordingly five persons were appointed by Miss Sheila Cameron Q.C. as Vicar General to conduct the inquiry under the chairmanship of His Honour Judge Francis Aglionby. The tribunal had its first meeting on 30th April 1993. But little progress could be made. One of the members of the tribunal notified his wish to retire on grounds of ill health. Mr. Cheesman was unwilling to continue with only four members, so a new tribunal had to be appointed. Then in December 1993 it was announced that the Archdeacon of Leicester had been appointed Bishop of Ballarat in Australia. The final blow fell on 2nd January 1994 when the Archdeacon of Loughborough suffered a heart attack.

 

46. The Bishop was confronted with a most difficult problem. As he explained in the course of a radio broadcast on 8th May 1994, the inquiry had already cost £30,000 in legal fees, with nothing achieved, and the total bill by the end of the inquiry was now estimated to reach £100,000, not counting any compensation which might become payable to Mr. Cheesman. The two Archdeacons most closely connected with the affair were no longer available to give evidence, so the outcome was uncertain. Furthermore a declaration of avoidance could only be made with the consent of four out of five of the members of the tribunal: see section 9(5). If on the other hand the proceedings ended in a rebuke for Mr. Cheesman under section 10(5) of the Measure, then relations at a personal and pastoral level (as the Vicar General put it in a letter of 20th January 1994) were unlikely to be improved. So it is not surprising that the Bishop decided to call a halt.

 

47. It was in these unpropitious circumstances that a meeting was arranged between Mr. Paul Morris of Messrs. Winckworth & Pemberton, acting on behalf of the Bishop, and Mr. Elengorn of the Church Commissioners. In a file note dated 20th January 1994 Mr. Elengorn recorded Mr. Morris’s proposal as follows:-

"Mr. Morris wanted to discuss proceeding instead by a pastoral scheme to transfer most of this multi-church rural parish to another benefice. He argued that this could be justified as a half-way house towards dissolving the benefice altogether which would be necessary in due course on financial and deployment grounds. Mr. Cheesman was only 40 and it was pastorally urgent to have as much as possible of the parish looked after by someone else."

 

48. In other words the intention was to find a means of hiving off most of the parish so as to reduce the number of those for whom Mr. Cheesman was pastorally responsible. Mr. Jonathan Cryer, the diocesan secretary, used very similar language at a meeting on 27th April 1994:-

"The current proposal was to proceed by a pastoral scheme to transfer most of the multi-church parish to another benefice or benefices so that as much as possible of the parish was looked after by someone else. Mr. Cheesman’s status as incumbent would be unaffected by the scheme but the area over which he had pastoral care would be drastically reduced. He would be left with those parts of his parish where people were sympathetic to his ministry."

 

49. The decision to abandon the inquiry under the Incumbents (Vacation of Benefices) Measure caused some dismay among those parishioners who had originally called for the inquiry in June 1990, apparently at the suggestion of the diocese. At an important meeting held at Burton Overy on 3rd May 1994 the Bishop explained the position. He was quite sure that pastoral breakdown had occurred, and that the breakdown was irretrievable; but the cost of continuing the proceedings under the Incumbents (Vacation of Benefices) Measure was prohibitive. The figure mentioned by the diocesan secretary was "getting on for a quarter of a million pounds". So the Bishop was looking for another solution by way of a scheme under the Pastoral Measure. He put it like this:-

"But what we are anticipating is that a scheme would leave Mr. Cheesman with a freehold incumbency. It would not be depriving him of a freehold incumbency. What it would be doing would be changing the shape of that freehold incumbency so that that freehold incumbency wouldn’t extend over the whole of the group as it does at the present time. And so it would be, in other words be taking some of the parishes out of the group and putting them with other parishes, whilst leaving Mr. Cheesman with a freehold intact."

 

50. Two days later the diocesan Pastoral Committee, of which the Bishop is chairman, set up a working party to suggest a way forward. On 12th September 1996 the diocesan Pastoral Committee submitted its final proposals to the Bishop. Under these proposals the parish of Gaulby was to be split three ways. Shangton was to form a new benefice with Church Langton. Burton Overy and Carlton Curlieu were to form a new benefice with Glen Magna. Kings Norton, Illiston-on-the-Hill and Little Stretton were to remain with Gaulby. The Bishop approved these proposals without amendment.

 

51. The next stage was for the scheme to be considered by the Church Commissioners in accordance with section 4 of the Pastoral Measure. The scheme was published on 16th December 1996. The Commissioners received 23 representations and a petition signed by 150 people against the scheme, and 44 letters and a petition signed by 159 people in favour of the scheme. On 24th February 1997 the Pastoral Committee of the Church Commissioners consulted the Bishop, and invited his views on a number of questions. The Bishop dealt with these at length in his letter of 27th March 1997. He expressed the view (which he has never concealed) that the Incumbents (Vacation of Benefices) Measure was a "deeply flawed piece of legislation". Difficulties in parishes were best tackled in a pastoral manner. He described the parish as being "deeply divided over the ministry of Mr. Cheesman", and said that "this has led to a serious breakdown of normal church life in the congregations particularly at Burton Overy and Carlton Curlieu". The diocese had no intention of proceeding further under the Incumbents (Vacation of Benefices) Measure. But he did not see the pastoral scheme as an alternative to such proceedings.

 

52. In accordance with its usual practice in difficult cases, the Pastoral Committee of the Church Commissioners appointed a sub-committee to visit the area. The sub-committee’s findings are set out in a note dated 25th November 1997. According to the sub-committee’s findings the seven villages have no natural centre. They are not a "natural social and geographical grouping", but look in different directions. Moreover the reorganising of the parish as proposed:-

"… would broadly reflect the de facto position whereby the bulk of those who felt that Mr. Cheesman did not offer appropriate pastoral care or did not choose to receive the care which he offered … would be transferred out of the Gaulby Group. It would thus more accurately reflect the geographical and sociological reality of the area."

 

53. At a meeting of the full Pastoral Committee on 3rd December 1997 the recommendations of the sub-committee were approved and adopted. In the Church Commissioners’ Statement of Reasons dated 5th January 1998 they repeat the sub-committee’s findings in identical language. They refer to the advice of Counsel that it is "appropriate for pastoral proposals to address situations concerning particular incumbents and incumbencies", and conclude that "for the historic, sociological, geographical and interpersonal reasons briefly summarised above [by interpersonal reasons they mean the pastoral breakdown between Mr. Cheesman and his parish] the provision for the cure of souls was not satisfactory and required improvement".

 

The Measures

54. There are three ways in which a beneficed clergyman with exclusive cure of souls within his parish can be deprived of his benefice. He can be subject to censure of deprivation under section 49(1)(a) of the Ecclesiastical Jurisdiction Measure 1963 if he is found guilty of an ecclesiastical offence under section 14 of the Measure or if he is convicted of an offence in the ordinary courts, and sentenced to imprisonment. Although charged with an ecclesiastical offence, Mr. Cheesman was never found guilty. The Bishop’s decision to take no further proceedings against Mr. Cheesman in July 1991 brought that chapter to a close: see section 23(2).

 

55. Secondly, the Bishop may execute a declaration of avoidance declaring the benefice vacant under section 10(2) of the Incumbents (Vacation of Benefices) Measure if the diocesan committee or pastoral tribunal, as the case may be, reports to the Bishop that there has been a serious breakdown of the pastoral relationship between the incumbent and the parishioners, as mentioned in section 9(1) of the Measure, and the committee or tribunal so recommends. Since the proceedings under the Incumbents (Vacation of Benefices) Measure have been aborted, there can be no question of any declaration of avoidance under section 10(2) of the Measure. Nor could there be a declaration of avoidance under section 11(6) of the Measure, since it is not suggested that Mr. Cheesman is unable to discharge his duties due to age or infirmity of body or mind.

 

56. Thirdly the pastoral committee of a diocese can make recommendations to the Bishop under section 2(1) of the Pastoral Measure 1983 for a pastoral scheme. Under section 17(1)(b) and (c) a pastoral scheme may provide for the dissolution of existing benefices or parishes, and the alteration of areas of existing benefices or parishes, including the transfer of a parish from one benefice to another. Section 25(1) provides:-

"A provision of a pastoral scheme which dissolves any benefice … may be brought into operation without the assent of the incumbent … and without waiting for a vacancy in the benefice …"

 

57. Mr. Dyer for the Church Commissioners relies strongly on section 25. He submits that if the benefice of Gaulby could be dissolved altogether without Mr. Cheesman’s consent it must follow that the benefice can lawfully be reduced by half. The question which underlies this appeal is whether that view can be reconciled with the freehold nature of the incumbent’s office, and in particular with Mr. Cheesman’s cure of souls (subject only to the Bishop’s general cure of souls), throughout the parish, and his exclusive right to perform divine service in any of the seven churches.

 

58. The powers exercisable under the Ecclesiastical Jurisdiction Measure go back a very long way. They enable an incumbent to be deprived of his freehold benefice where he has been found guilty of unbecoming conduct, or serious neglect of duty. But these powers, extensive though they are, were not designed to deal with serious pastoral breakdown. Nor, of course, did they cover the case of an incumbent who is simply too old or too infirm to discharge his duties. One can see therefore that there was a need for a Measure to cover these eventualities. One can see also that in the case of pastoral breakdown there was a need for some sort of impartial inquiry. For it is not to be assumed that pastoral breakdown will always be due to the conduct of the incumbent. It may equally be due to the conduct of his parishioners. Since one consequence of an inquiry might be a declaration of avoidance depriving the incumbent of his freehold benefice, the incumbent was clearly entitled to a fair hearing.

 

59. The Measure which was designed to meet these diverse objectives had a long gestation period. There may be many who share the Bishop’s view that the Incumbents (Vacation of Benefices) Measure is "deeply flawed". Obviously reconciliation between the incumbent and his parishioners should be the preferred solution. This is now made clear by section 1A(1A) of the amended Measure, and by the new Code of Practice issued under the amended section 1.

 

60. Another defect is that the procedure is much too cumbersome and expensive. There is room for the sort of simplification which Lord Woolf’s reforms are designed to bring about in civil proceedings. But that said, there was undoubtedly a gap which needed to be filled. In the case of irreconcilable breakdown of the pastoral relationship, the procedure designed by the General Synod, and approved by Parliament, is that set out in the Measure. Nowhere in the discussions which preceded the passing of the Measure, or in the Code of Practice issued by the House of Bishops, is it suggested that pastoral breakdown, where it exists within a parish, can be resolved by the simple process of splitting the parish in two under the Pastoral Measure of 1983. On the contrary it is clear from paragraph 3 of the Code of Practice that the three Measures, that is to say the Ecclesiastical Jurisdiction Measure 1963, the Incumbents (Vacation of Benefices) Measure 1977 and the Pastoral Measure 1983 are all different in their origin and distinct in their purposes. They are not interchangeable. The Incumbents (Vacation of Benefices) Measure provides a complete statutory code in the case of pastoral breakdown. The safeguards which it provides are not to be bypassed. Such safeguards include the incumbent’s right to opt for a provincial tribunal. The Bishop has made clear his view that there has been a serious pastoral breakdown in the parish. Mr. Cheesman disagrees. His case is that the opposition to his Ministry is confined to a small but vociferous group in Burton Overy and Carlton Curlieu. Parliament has provided a procedure which is specifically designed to resolve that issue. On the face of it the alleged pastoral breakdown in Gaulby falls fairly and squarely within the provisions of the Incumbents (Vacation of Benefices) Measure.

 

61. I turn now to the Pastoral Measure 1983. It consolidates with minor amendments the Pastoral Measure 1968. It is designed to make better provision for the cure of souls. Although, as the Church Commissioners point out in paragraph 3 of their Statement of Reasons, the long title is expressed in wide language, I have no doubt that the pastoral problems to which it is directed, and the mischief which it seeks to remedy, are very different from the pastoral problems addressed by the Incumbents (Vacation of Benefices) Measure. Thus section 2(1) of the Pastoral Measure provides that it shall be the duty of the Pastoral Committee to review "the arrangements for pastoral supervision in the diocese or any part thereof". Section 2(3) provides:-

"The Pastoral Committee shall at all times -

 

(a) have particular regard to the making of provision for the cure of souls in the diocese as a whole, including the provision of appropriate spheres of work and conditions of service for all persons engaged in the cure of souls and the provision of reasonable remuneration for such persons;

 

(b) have regard also to the traditions needs and characteristics of individual parishes."

 

62. These provisions show that the Pastoral Measure is designed to deal with the structure of parishes and benefices within a diocese, and their relationship to each other. Reorganisation is often (though not always) required because of a shortage of clergy, or shrinking congregations, especially in rural areas. Typically, two or more parishes will be joined in a single parish, or two or more benefices will be united in a single new benefice. In formulating new proposals the traditions of individual parishes are relevant, including forms of churchmanship, as paragraph A2(1) of the Code of Recommended Practice makes clear. But nowhere in the Measure itself, or in the very lengthy Code of Practice, is it suggested that what the Commissioners call "interpersonal reasons" are relevant in formulating a pastoral scheme. Yet these are the very reasons which the Commissioners spell out at length in paragraph 12(2) of their Statement of Reasons dated 5th January 1998. Their Lordships made inquiry of Mr. Dyer whether the Commissioners were aware of any other instance in which "interpersonal reasons" i.e. a breakdown of the pastoral relationship between an incumbent and his parishioners had ever been put forward as a justification for a pastoral scheme. Mr. Dyer was unable to identify such a case. I am not surprised. For it is a sound principle of statutory construction that Parliament does not intend to provide two alternative remedies for the same mischief. If cases of pastoral breakdown could be cured by a scheme under the Pastoral Measure 1983, there would have been no need for the Incumbents (Vacation of Benefices) Measure in the first place. It could always have been said that the "better provision for the cure of souls" within the parish required the incumbent to be separated from those of his parishioners who opposed him, or, in an extreme case, to be deprived of his benefice altogether. The Pastoral Measure was never intended to be used for such a purpose, and never has been used for such a purpose. It would provide a most unfortunate precedent. For on the one hand it would encourage parishioners to believe that they can be rid of an unpopular incumbent. On the other hand it would deprive the incumbent of the very safeguards so carefully built into the Incumbents (Vacation of Benefices) Measure.

 

63. At this point it is necessary to say something about section 25(1) of the Pastoral Measure, which permits dissolution of a benefice without the assent of the incumbent, and without waiting for a vacancy. Like the Long Title, section 25(1) is expressed in very general language. But like any other statutory provision, section 25(1) must be read in its context. The purpose of the section is to enable a scheme to go ahead which is otherwise desirable, but which cannot go ahead without the co-operation of one or more incumbents. The scope of section 25 is well illustrated by a paragraph from a document published by Church House in July 1979 reviewing progress in the deployment of clergy in accordance with the Sheffield Report:-

"Some Bishops are increasingly aware and worried by the problems which result from their inability to move men who are holding up pastoral reorganisation schemes. Incumbents who are 50 or over often do not wish to move, and will continue to occupy their present livings until they retire. Some, knowing that they are not going to be replaced, may be tempted to defer their retirement because of this. A secular organisation would in such circumstances often ‘direct’ an individual to move, or even offer him early retirement on favourable terms. The Church, for obvious reasons cannot do this. More than any other factor this is tending to hold up the implementation of schemes which are desirable, and to keep clergy in the wrong places."

 

64. Thus the purpose of section 25 is to provide the machinery for dispossessing an incumbent where the scheme provides for the dissolution of his benefice, and dispossession is a necessary consequence. It does not enable dispossession to be pursued as a purpose in itself. Thus despite the wide language, section 25 has a limited impact. This is borne out by the numerous references in Appendix 14 of the Code of Recommended Practice. Thus in paragraph B6(2) of Appendix 14 one finds:-

"It will generally be helpful in the case of a clergyman who is to be dispossessed if at this stage an explanation is given of the main features … of schemes which result in the dispossession of clergymen." [emphasis added]

 

65. In paragraph B6(3) one finds:-

"Proposals which would result in the dispossession of an incumbent … without his assent cannot be effected by means of a pastoral order. A pastoral scheme is always required."

 

66. Paragraph B6(5) provides:-

"The following are special features of schemes which have the effect of dispossessing clergymen of office …."

 

67. Paragraph B6(7) provides:-

"Where the dissolution of a benefice … will result in the dispossession of the present office holder, the normal course … should always be for the Bishop and his advisers to help him in every way possible to find another ecclesiastical post, at least comparable with his present office."

 

68. Nowhere in Appendix 14 is there any reference to a scheme which has dispossession for its purpose, or one of its purposes. This again is not surprising. For a construction of section 25 which would enable an incumbent to be dispossessed because he was unpopular, or because he had committed some ecclesiastical offence, not serious enough to justify censure of deprivation under section 49 of the Ecclesiastical Jurisdiction Measure, would not only be inconsistent with that provision, but would also go far to undermine the integrity of the parson’s freehold. I will return to this point later.

 

69. But it is said that the scheme can be justified on other grounds, and that the separation of Mr. Cheesman from those of his parishioners who oppose him is only an incidental advantage of the scheme which has other merits, and can be supported on independent grounds, described in the Church Commissioners’ Statement of Reasons as "historic, sociological and geographical".

 

70. The geographical argument that the seven villages have no natural centre, and that they look in "different directions" was a late arrival on the scene. It must surely be equally true of very many rural parishes in which villages of roughly equal size are brought together in a single benefice. I say nothing about the sociological ground since I do not know what it means. I am reluctant to accept Mr. Dyer’s explanations that it may have something to do with class. As for historic differences, it may be that the villages were on different sides in the civil war, or something of that sort. But what has that to do with the rearrangement of parishes in the twentieth century in order to meet a continuing shortage of clergy? The effect of the rearrangement will be to reduce a tiny parish (in the course of a radio broadcast it was said to be one of the smallest parishes in England) by half. It may be that the half of Gaulby that remains could eventually be joined with Billesden. But that would not be acceptable in Billesden so long as Mr. Cheesman is the incumbent; and Mr. Cheesman is only 45. In the meantime I find it impossible to accept that the reduction of Gaulby to a parish of under 400 souls and an electoral roll of 59, is a sensible or proper use of the Pastoral Measure. It cannot in my view be justified on the historic, geographical or sociological grounds to which the Church Commissioners refer in paragraph 12(3) of their Statement of Reasons. There must be some other reason; and that reason can only be the pastoral breakdown between Mr. Cheesman and his parishioners, for which the statutory remedy lies by way of an enquiry under the Incumbents (Vacation of Benefices) Measure.

 

71. In his letter dated 27th March 1997 the Bishop justifies the scheme on somewhat different grounds. Such is the antagonism between the villages that it would, he says, for that reason alone be necessary to proceed with the scheme as drafted even if Mr. Cheesman were to leave tomorrow. But Mr. Cheesman has no intention of leaving tomorrow. That is the root of the whole problem. It was the arrival of Mr. Cheesman in 1988, and especially his conviction in September 1989 that caused the antagonism: see paragraph 5 of the Further and Better Particulars of the Archdeacon’s Complaint dated 14th November 1990. It was to alleviate that antagonism that the Bishop first proposed the creation of a conventional district within the existing parish of Gaulby: see the Bishop’s letter to Mr. Val Grieve dated 6th April 1992. It was for the same reason that he later proposed a scheme under the Pastoral Measure when he decided not to continue with the proceedings under the Incumbents (Vacation of Benefices) Measure: see the note of the meeting between Mr. Elengorn and Mr. Paul Morris dated 20th January 1994. There is indisputable evidence on the documents that the original purpose of the scheme was to separate Mr. Cheesman from those of his parishioners who opposed him. The later addition of "historic sociological and geographical grounds" (for what they may be worth) cannot alter that basic fact. Since Mr. Cheesman is the cause of the antagonism, it does not help to consider what would have been the position if Mr. Cheesman had already gone, or had never come. The fact is that he is still there. The only question therefore is whether it is a proper use of the Pastoral Measure to divide his parish in two so as to remove from his care those of his parishioners who are most dissatisfied with his ministry. For the reasons which I have given, I am compelled to answer that question in the negative.

 

72. This brings me back to the question of Mr. Cheesman’s freehold. It is said that his freehold is not in danger. His benefice would be left intact. It is true that he will continue to live in the parsonage house, and that his stipend will remain the same. But a benefice is not confined to such temporal things as these. Mr. Cheesman was instituted by the present Bishop’s predecessor into the cure of souls. He has the right to exercise that cure of souls under the Bishop in the parish as a whole. He has the exclusive right to take divine service in all seven churches. The spiritualities into which Mr. Cheesman was instituted are as much part of the freehold office as the temporalities. To reduce his parish by half without his consent would be to deprive him of half his cure of souls. How then can it be said that his benefice will be left intact?

 

73. I would not wish to leave this important point of principle without mentioning the appeal of the 12th appellant, Mr. K. Blythe. I quote paragraphs 18 and 19 of his written submissions:-

"(18) An Incumbent’s freehold has been a protection for incumbents in the past against patrons, so that they were able to exercise their ministry without fear or favour in respect of patrons. The freehold may also be protection for incumbents against bishops and against sections of the parishioners.

 

(19) If the freehold can be altered at will to suit the disposition of sections of the parishioners that protection is removed."

 

74. In his oral submissions Mr. Blythe explained that he was not appearing as a friend of Mr. Cheesman. He had been critical of Mr. Cheesman in the past. But he was concerned as to the consequences if the present scheme is allowed to go forward. Mr. Cheesman has been properly presented and instituted. A Bishop does not, he said, have the right to move his parish priests around like chessmen.

 

Conclusion

75. I regret having had to express my dissenting opinion at such length, contrary to the usual practice of the Board. But the appeal involves questions of some importance in the field of ecclesiastical law. The Bishop found himself in an impossible position. He has tried with great patience and the utmost good faith to find a solution without injustice to Mr. Cheesman. He was advised by counsel that this could be done by means of a pastoral scheme. I regret that in my view he was given the wrong advice.

 

76. I am conscious of the weight which the Board always attaches in these cases to the views of the Diocesan Pastoral Committee, the Bishop and the Church Commissioners. But the appeal is an appeal on fact as well as law. It is not enough that there was evidence on which the Commissioners could reach the conclusions they did. It is not enough that the points now raised by the appellants were considered by the Commissioners and rejected. It is the duty of the Board to consider the points afresh, to investigate the merits of the proposed scheme, and express their own views.

 

77. I cannot for my part agree with the Church Commissioners that "historic, sociological and geographical" considerations justify the creation of a new benefice of Gaulby with an electoral roll of 59. If Mr. Wakely had continued as incumbent, or if a successor had been found in the same mould, it is inconceivable that the 1982 Scheme, confirmed as it was as recently as 1988 by the Union of the Parishes, would have been described as a failed experiment. It is important to notice in that connection that the differences which have arisen between the villages are not, in the Bishop’s view, due to any variation in churchmanship, which is a mixture of evangelical and central churchmanship throughout the parish. To my mind it is evident that the differences which have arisen between the villages have one cause, and one cause only, namely the arrival of Mr. Cheesman and his subsequent conviction for an offence of indecency.

 

78. The Commissioners say that the parish is no longer a "workable pastoral unit". If by this they mean that it is no longer a workable pastoral unit by reason of the so-called historic sociological and geographic considerations, then I must respectfully disagree. They have produced no evidence to support such a sudden change of view after so short a space of time. If on the other hand they mean that the parish is not a workable pastoral unit so long as Mr. Cheesman is incumbent, then they may well be right. This was certainly the Bishop’s view when he said on 3rd May 1994 that pastoral breakdown between Mr. Cheesman and his parish had occurred, and that the breakdown was irretrievable. It was in the light of that breakdown that the diocese commenced the appropriate proceedings under the Incumbents (Vacation of Benefices) Measure in 1990. However in 1994 the Bishop decided to discontinue those proceedings because of the prohibitive cost. One cannot blame him. But equally one cannot assume that Mr. Cheesman was in the wrong; and it must be remembered that he is supported by 150 of his parishioners who oppose the scheme.

 

79. The Commissioners say that the scheme is not a "way round" the Incumbents (Vacation of Benefices) Measure. But that is exactly what it is. The inference is inescapable. There is no other plausible explanation for the scheme.

 

80. So I cannot with regret agree with the majority opinion that the causes of the pastoral problems in this case are causes which "fell exclusively within the 1983 Measure". Nor can I agree that "the fundamental problem was the earlier combination of incompatible parishes". Indeed I find it hard to envisage what, in a Christian context, that could mean.

 

81. For my part, therefore, I would have allowed the appeal, or at least referred the matter back to the Commissioners for reconsideration in the light of what I regard as the correct view of the law and the facts. But since my view will not prevail, it is unnecessary for me to decide between these alternatives.