All Saints Spring Park Parochial Church Council v Church Commissioners [2024] UKPC 23 (30 July 2024)

"(a) to make or assist in making better provision for the cure of souls in the diocese as a whole and, to the extent that the committee thinks appropriate, in particular parts of the diocese or in particular parishes. ...

(f) where it considers it desirable, to make recommendations to the bishop in accordance with section 6 or 21 for any of the matters for which provision may be made under this Measure (other than section 50) by a pastoral scheme or order. ..."

Section 6 sets out a scheme of consultation of interested parties when the MPC formulates draft proposals for submission to the bishop. Section 6(1) provides:

"Before deciding to make any recommendations to the bishop, the mission and pastoral committee shall so far as may be practicable ascertain the views of the interested parties or invite them to express their views –

(a) on the recommendations the committee proposes to make, or

(b) if the committee has yet to formulate recommendations, on the issues which the committee considers need to be addressed."

Interested parties include the incumbents of benefices which would be affected by the implementation of the recommendations and the PCCs of churches which would be so affected: section 6(2). Subsections (5) and (6) impose on the MPC the obligation to afford to the affected incumbents and the PCCs the opportunity to meet the committee or a sub-committee or a representative of the committee, and where the recommendation involves the dissolution of a benefice, the incumbent is to be afforded the opportunity of meeting the committee itself.

If, following this consultation, the MPC decides to make recommendations, it formulates them into draft proposals and submits them together with a statement of the views of the interested parties to the bishop, who may amend the draft proposals: section 6(7) and (8). It is only after the bishop approves the draft proposals, with or without amendments, that the bishop sends those proposals to either the MPC or the Commissioners for the preparation of a draft scheme: section 7(1). If the proposals are, as in this case, sent to the Commissioners, their first task is to consider whether the procedures in section 6 have been properly applied: section 7(4). This is an important safeguard as a serious failure to comply with the consultation requirements of that section would be a ground of legal challenge to the Board. If the Commissioners are satisfied that the section 6 procedures have been properly applied, they are required then to prepare a draft scheme: section 7(5).

Section 9(1A) requires the Commissioners to serve a copy of the draft scheme which they have prepared on each of the interested parties together with a notice stating that:

"written representations with respect thereto may be made to the Commissioners not later than a date specified in the notice, being a date not less than twenty-eight days after the service of the notice."

The words "with respect thereto" are a reference to the draft scheme. Section 9(1B) requires the Commissioners to publish online the draft scheme together with a notice stating the objects of the draft scheme and stating the date by which written representations may be made as in subsection (1A). Section 9(3) provides that the Commissioners shall send copies of the notice to the secretary of the PCC of each parish affected by the draft scheme requiring him or her to publicise the contents of the notice to the congregation in the ways specified in that subsection. Section 9(4) and (5) provide:

"(4) The Commissioners shall consider any written representations duly made with respect to any draft scheme or order and may, if they think fit, afford an opportunity to any person, whether he or she has made written representations or not, to make oral representations with respect to the draft scheme or order.

(5) The Commissioners may, before or after the end of the period within which written representations may be made under this section, extend that period, and any representations made within the period so extended shall be deemed to be duly made." (Emphasis added.)

In the Board's view, those provisions in section 9 make it clear (i) that the written representations to which the section applies are those relating to the draft scheme and (ii) that to be "duly made" those written representations must be made within the time limit specified in the notice, unless the Commissioners grant an extension of time under subsection (5), in which case the representations received within the extended period are "deemed to be duly made."

Section 11 provides for the making of the scheme. Subsection (1) provides that if no representations in respect of the draft scheme have been duly made and the Commissioners are of the opinion that the scheme should be made, they are required to submit the scheme to the bishop for his or her consent, and when that consent has been given, "they shall seal a copy of the draft scheme and so make the scheme."

Section 11(2) provides that where representations in respect of the scheme have been duly made and the Commissioners, having considered those representations, consider that the scheme should be made, they shall so far as practicable:

"(a) serve on the persons who duly made written representations with respect to the draft scheme notice of the Commissioners' decision with respect to the representations together with a statement in writing of the reasons therefor; and

(b) serve on any other persons, being interested parties, a copy of the notice." (Emphasis added.)

Section 11(3) is another important provision in relation to the question of the Board's jurisdiction. It provides:

"A notice under subsection (2) shall inform persons who have duly made written representations with respect to the draft scheme of their rights, on obtaining the leave of the Judicial Committee of the Privy Council, to appeal to Her Majesty in Council and shall specify the date, being a date not less than twenty-eight days after the service of the notice, on or before which notice of intention to apply for such leave must be given." (Emphasis added.)

It is clear from this provision that the 2011 Measure envisages that only those who have "duly made", ie made by the deadline set out in the notice under section 9(1A) (see paras 47 and 48 above), written representations with respect to the draft scheme will have a right to appeal to the Board. This limitation is made express in section 12 which deals with appeals to the Board. Section 12, which is of critical importance to the question of the Board's jurisdiction, so far as relevant provides:

"(1) Any person who has duly made written representations with respect to the draft scheme may appeal to Her Majesty in Council against the scheme or any provisions thereof, but only with the leave of the Judicial Committee of the Privy Council.

(2) Schedule 2 shall apply to applications for leave to appeal, and to appeals to Her Majesty in Council, under this section.

(3) If –

(a) no notice of intention to apply for leave to appeal is given on or before the date specified in the notice served under section 11(2), or

(b) no application for such leave is made within the period prescribed by paragraph 4 of Schedule 2, ...

the Commissioners shall seal a copy of the draft scheme and so make the scheme." (Emphasis added.)

Schedule 2 to the 2011 Measure provides so far as relevant:

"(1) Any person who intends to apply for leave to appeal to Her Majesty in Council under section 12 shall on or before the date specified in the notice served on him or her under section 11(2) send written notice of his or her intention to the Registrar of the Privy Council. The notice shall be sent by registered post or recorded delivery service and a copy shall be sent to the Commissioners by the applicant. ...

(3) If the Registrar of the Privy Council is satisfied that a notice has been given by a person who has duly made representations with respect to the scheme in question he or she shall so notify the applicant and the Commissioners. If he or she is not so satisfied he or she shall inform the applicant and the Commissioners that the applicant is not entitled to proceed with his application.

(4) Within the period of 28 days beginning with the date on which an applicant for leave to appeal under section 12 receives a notification under paragraph 3 from the Registrar he or she shall lodge in the registry of the Privy Council five copies of his or her application for leave ..." (Emphasis added.)

The procedure set out in the 2011 Measure, so far as relevant may be summarised as follows:

(i) The MPC prepares recommendations having regard to the furtherance of the mission of the Church (section 3);

(ii) The MPC ascertains the views of interested parties on its proposed recommendations before deciding whether to make recommendations (section 6);

(iii) After the consultation is completed, the MPC formulates draft proposals and submits them and a statement of the views of interested parties to the bishop who may approve the draft proposals with or without amendment (section 6(7) and (8));

(iv) The bishop, if he or she approves, then sends the proposals to the Commissioners to prepare a draft scheme (section 7(1));

(v) The Commissioners check to make sure that the consultation process under section 6 has been carried out and then prepare a draft scheme (section 7(4) and (5));

(vi) The Commissioners then carry out a fresh consultation exercise with respect to the draft scheme, and written representations on that draft scheme must be made within the time limits set in the notice unless the Commissioners extend that time limit (section 9(1), (1A), (1B), (4) and (5));

(vii) The Commissioners are obliged to make the scheme if they receive no timely representations and are satisfied that the scheme should be made (section 11(1));

(viii) If after receiving representations, the Commissioners decide that the scheme should be made, they must give notice of their decision and a statement in writing of their reasons. The notice of a right to appeal to the Board is given to those who have made timely written representations in relation to the draft scheme (section 11(2) and (3));

(ix) The right to appeal to the Board is limited to those who have made timely written representations with respect to the draft scheme (section 12(1));

(x) The Commissioners are bound to make the scheme if there is no timely notice by those entitled to appeal of their intention to apply for leave to appeal to the Board (section 12(3)); and

(xi) The Registrar of the Privy Council is given the task of checking that an applicant for leave to appeal is a person who has made timely representations in respect of the draft scheme in question and is therefore entitled to proceed with the application to the Board (Schedule 2, para 3).

The first question posed by the parties is whether the ASSP PCC has standing to pursue this appeal. The answer is that it does not. The Board has considered each of the steps which, on the appellants' submission, gave the ASSP PCC standing and is satisfied that none of them meets the requirements of the 2011 Measure to support an appeal to the Board.

First, the written expressions of view which were made by solicitors on behalf of the ASSP PCC and the Rev Yvonne Clarke on 21 February 2020 (para 10 above) were representations relating to the DMPC's proposed recommendations to the bishop, before the DMPC sent its draft proposals to the bishop under section 6(7) of the 2011 Measure and before the bishop instructed the Commissioners to prepare a draft scheme. Such expressions of view are not "written representations with respect to the draft scheme" which did not exist when those representations were made. It would in any event be impracticable to treat such expressions of views as written representations in relation to the draft scheme. The Commissioners need to know to whom to send out notices under section 11, and the 2011 Measure provides a clear rule that they are to send the notices to those who had made written representations to them in respect of the scheme.

Secondly, the representations which the ASSP PCC made to the Commissioners on 25 November 2020 (para 18 above) were made long after the time limit of 7 September 2020 which the Commissioners had set in their notice of 21 July 2020 under section 9(1), (1A) and (1B) of the 2011 Measure. The Commissioners were not asked to and did not extend the time in which the written representations could be made under section 9(5). As a result, those representations were not "duly made" so as to give the ASSP PCC standing under section 12(1).

Thirdly, the representations by James Clarke in a letter dated 4 September 2020 (para 14 above) were submitted in a timely manner but they were representations made in a personal capacity. Mr Clarke designated himself at the end of the letter as "James Clarke, Son of Rev Yvonne Clarke" and the text of the letter contained no suggestion that he was acting on behalf of the ASSP PCC. While James Clarke was the secretary of the ASSP PCC and used his ASSP PCC email address to send the representation, the reasonable reader of his representation would conclude that he was writing in a personal capacity. This representation was therefore not made on behalf of the ASSP PCC.

As a result, the ASSP PCC does not have standing to appeal to the Board under section 12 of the 2011 Measure because its written representations were not "duly made".

The second question is whether either or both the ASSP PCC and the Rev Yvonne Clarke gave timely notice to the Board of an intention to apply for leave to appeal. It will be recalled (para 21 above) that on 28 September 2021 the Commissioners decided that the draft scheme should be made and in their notice under section 11(2) of the 2011 Measure fixed 7 November 2021 as the day by which notice of an intention to seek leave to appeal to the Board must be given by sending the notice to the Registrar of the Board and the Commissioners.

It is common ground that Leigh Day's initial enquiry by email on 28 October 2021 was not such a notice but an enquiry as to the correct form of an application for leave to appeal. The Registrar's mistaken acknowledgement of that enquiry as a notice of intention to appeal cannot alter the nature of the initial enquiry. Leigh Day's further email of 5 November 2021 did not disclose the party or parties who intended to apply for leave to appeal. This further email is clearly defective as a notice as the Registrar would not be able to perform her task under para 3 of Schedule 2 to the 2011 Measure of ascertaining whether an applicant was entitled to appeal under section 12(1). Contrary to the appellants' submission, there was no duty on the Registrar to ask Leigh Day to identify their clients; it was the obligation of the solicitors to identify for whom they were acting. Nor was the Registrar deemed to know of the procedure which had preceded Leigh Day's correspondence with the Board. Para 1 of Schedule 2 requires that the applicant copy his or her notice to the Commissioners. The Registrar is thereby in a position to ascertain by contacting the Commissioners whether the applicant is entitled to appeal to the Board. There is no basis and no need for the Registrar to be deemed to know what she does not know.

The 2011 Measure states the consequence of there being no valid notice; absent the giving of any valid notice of intention to apply for leave to appeal, section 12(3) requires the Commissioners to seal a copy of the draft scheme and so make the scheme. The Measure leaves no doubt as to the consequence of there being no valid notice of such an application.

Counsel referred to several authorities in the course of their submissions on how the courts have addressed the consequences of failures to comply with statutory procedural requirements in different contexts. Among the authorities referred to were R v Soneji [2005] UKHL 49; [2006] 1 AC 340; R (Trail Riders Fellowship) v Dorset County Council [2015] UKSC 18; [2015] 1 WLR 1406; Shahid v Scottish Ministers [2015] UKSC 58; [2016] AC 429; and R v Layden (Stuart) [2023] EWCA Crim 1207; [2024] 1 Cr App R 6. The Board sees no need to discuss those authorities as it is not disputed that the effect of a failure to comply with a statutory procedural requirement will depend upon the terms of the particular statute and the purpose of the statutory requirement. Counsel were agreed that in interpreting a notice the court considers how a reasonable recipient of the notice would interpret it, reading it in its statutory or contractual context. See Newbold v Coal Authority [2013] EWCA Civ 584; [2014] 1 WLR 1288; Pease v Carter [2020] EWCA Civ 175; [2020] 1 WLR 1459.

Mr Thomas submitted that the procedures in the 2011 Measure, including procedures initiating an appeal, were designed to be operated by ordinary parishioners. That may be so in many cases. But the 2011 Measure addresses that circumstance by making detailed provision for the ascertainment of the views of interested parties and for the giving of notices which inform the recipients of the procedural steps which they are required to undertake if they wish to seek leave to appeal. In this case Leigh Day knew of the deadline of 7 November 2021 but failed in their notice of 5 November 2021 to state who or which of several potential objectors were giving notice of their intention to appeal. As a result, neither the Registrar nor the Commissioners would have been able to ascertain from the notice who the applicant or applicants were, with the consequence that the Registrar would not have been able to perform the task allocated to her of checking to see if the applicant was entitled to seek to appeal to the Board. Mr Thomas rightly did not dispute that the notice of 5 November 2021 was defective. The consequence of that defect is that the notice was invalid under section 12 of and Schedule 2 to the 2011 Measure and the Commissioners are required to make the scheme.

The Commissioners' challenge to the jurisdiction of the Board therefore succeeds. The Board has no jurisdiction in the appeals by the Rev Yvonne Clarke and the ASSP PCC respectively and must therefore dismiss those appeals. In the result neither the third nor the fourth issues in para 39 above arise, and the Board records that Ms Wakefield did not press the fourth issue.

5. The substantive appeal

Because the Board has concluded that it does not have jurisdiction to hear this appeal, anything which it says on the merits of the appeal cannot create a binding precedent. But, because the objection on the ground of jurisdiction was raised so late and as a courtesy to the congregants who listened so patiently and courteously to the legal debate in the appeal, the Board records briefly its views on the merits of the appeal.

First, in relation to the claim that the Commissioners are a public authority under section 6 of the HRA, the Board was satisfied, essentially for the reasons advanced by Ms Wakefield, that the Commissioners are not. The House of Lords in Aston Cantlow, and particularly in the speeches of Lord Hope of Craighead and Lord Rodger of Earlsferry, set out the correct approach to ascertain whether a body within the Church is a public authority under section 6(1) of the HRA.

As Lord Hope stated (para 61) the relationship between the state and the Church is one of recognition and not the devolution to it of governmental powers or functions. The Church as a whole has no legal status or personality but comprises a number of bodies which perform specific roles. The Church Commissioners are one such body which by the Church Commissioners Measure 1947 has been constituted by the Church and not by the state. The question in this case, as in Aston Cantlow, is whether a body 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 court: Lord Rodger at para 163.

Following that approach, and having regard to the authorities to which Ms Wakefield referred, the Board is satisfied that the Commissioners are not a core public authority exercising functions which are broadly governmental and thus functions of a public nature. Nor are the Commissioners a hybrid public authority, some of whose functions are of a public nature. The relevant function is the making of the scheme which involves the reorganisation of parishes to make provision for the cure of souls and in furtherance of the mission of the Church. That is an ecclesiastical function and not a function of a public nature in terms of section 6(3) of the HRA. It follows that the obligation in section 6 of the HRA to act in a way which is compatible with a Convention right does not apply to the Commissioners.

In any event, the Board is satisfied that the decision to make the scheme did not involve unlawful discrimination or any failure to take into account the needs of minority ethnic communities, including in the Shrublands estate. The Board refers to the discussion of the provision of ministry and mission in para 128 and following in the Commissioners' statement of reasons and their consideration of allegations of racism in para 135 and following.

Secondly, because the Commissioners are not a public authority, the public sector equality duty under section 149(2) of the EA 2010 does not apply to it. In any event, both the DMPC and the Commissioners considered the impact of the proposals and the scheme on the UK minority ethnic community in the Shirley area, including the Shrublands estate.

Thirdly, while parties who have made written representations in relation to a scheme have a right to apply for permission to appeal to the Board on the merits of the scheme, the Board's jurisprudence over the years has set out the boundaries of such an appeal. The Board attaches weight to the role of the DMPC and the role of the bishop in considering the options for the future of a parish and in approving a scheme. It also recognises the knowledge and expertise which the Commissioners bring to their role. Having regard to the fact that a scheme has the support of responsible bodies within the Church, it has been the practice of the Board to intervene in relatively limited circumstances. Such circumstances include where there has been a significant procedural irregularity or excess of jurisdiction, where there has been an error in principle in the decision or otherwise the decision-maker has clearly gone wrong, and, what is really another way of saying the same thing, where there are cogent reasons for dissenting from the recommendations of the bodies charged with making the decisions. The Board has repeated its support for this approach in several cases: Little Leigh Parochial Church Council v Church Comrs [1960] 1 WLR 567, 568; Elphick v Church Comrs [1974] AC 562, 566-567; Hargreaves, at pp 460-461; and Cheesman v Church Comrs [2000] 1 AC 19, 25.

The principal reason why the Board is slow to intervene is because the 2011 Measure contains an elaborate process of obtaining the views of interested parties, review by the DMPC, approval of the DMPC's proposals by the bishop, and then a decision by the Commissioners to draft a scheme, and, after consideration of representations made to them in respect of a draft scheme, to make the scheme. As the Board stated in Hargreaves (p 460):

"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..."

Another ground on which the Board may intervene is where there has been a change of circumstances or the emergence of fresh evidence since the Commissioners' decision (Rogers v Church Comrs (unreported) February 11, 1980; Hargreaves) but the circumstances of the parish of ASSP have not improved in this case.

The Board is of the view that the Commissioners' statement of reasons makes a compelling case in support of the scheme having regard to the financial predicament of and governance problems within the parish of ASSP, and the ability of the parishes of St John Shirley and St George Shirley with the assistance of a pioneer minister to serve the community of Shirley, including the UK minority ethnic community. If it had had jurisdiction, the Board would not have allowed the appeal.

6. Conclusion

The Board will humbly advise His Majesty that the appeal should be dismissed for want of jurisdiction. In those circumstances, unless the parties submit otherwise within 21 days of the issue of this judgment, the Board is minded that each party should bear its own costs on this appeal.

The Judicial Committee of the Privy Council Decisions