Ecclesiastical law may not be the most lucrative of practice areas, but those involved believe it has its own rewards. Grania Langdon-Down finds out more


Employment, exhumations, trusts, property, landlord and tenant, charity law, ancient rights – and even stalking – can all be part of a day’s work for solicitors specialising in ecclesiastical law. So it is not surprising that ‘esoteric’ is the favoured term when it comes to describing it as a practice area.

The Church of England passes its own legislation, known as Measures, and has its own courts; the core of ecclesiastical practice is related to alterations to churches, marriage licences and the bishops’ work. It also extends into public areas through maintained schools and colleges, trusts, property and employment issues.


While some of the legislation may date back centuries, ancient and modern can work well together. Chancel repair liability, an ancient land interest that can make owners of former rectorial land liable for the cost of repairs to the parish church, can now be screened on-line by a new service called ChancelCheck, so homebuyers are not caught unawares (see [2005] Gazette, 17 March, 11).

The liability is attached to land in 35% of parishes in England and Wales and can prove expensive, as Andrew and Gail Wallbank found when they fought the Parochial Church Council of Aston Cantlow, in Warwickshire, all the way to the House of Lords, only to be left still facing a £95,000 bill for repairs to the local parish church (Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] 3 WLR 283).


Reform has been discussed for years. David Cheetham, senior partner at St Albans-based Claytons and registrar, or legal adviser, to the Diocese of St Albans for the past 26 years, welcomes a move by the Land Registry to introduce a regulation that requires chancel repair liability to be registered within ten years or it lapses.


He says: ‘When the Law Commission considered the issue in the 1980s, I sent in a paper suggesting liability should be registered. Instead, the commission recommended its abolition. However, that was unworkable unless compensation was paid by the government, so the report was shelved. Now it looks as though my suggestion is finally bearing fruit.’


The structure of the Church provides a range of legal opportunities. The National Church Institutions of the Church of England include the General Synod, the Church’s parliament, and the church commissioners, who have a number of quasi-judicial functions, including over parish boundaries, and who are responsible for church land and share portfolios, which generate a large amount of legal work. They are supported by a legal office of about a dozen solicitors and eight legal executives and licensed conveyancers.


The next tier down are the 43 dioceses, which have their own registrars – usually local solicitors – who provide legal advice to everyone from the bishop to the parochial church council and members of the public with queries about church matters. The registrar also acts as clerk to the local ecclesiastical court, known as the consistory court, which mainly deals with ‘faculty’ cases – applications for alterations or repairs to churches, similar to listed building consent.


In addition, the court deals with errant clergy who break church law, for instance by adultery. However, the Clergy Discipline Measure 2003, which is scheduled to come into force in January 2006, will replace the court’s role with new disciplinary tribunals operating to the civil rather than the criminal standard of proof.


The ecclesiastical courts also consist of the provincial courts, the Court of Ecclesiastical Causes Reserved and, when required, a Commission of Review. In some faculty cases, an appeal can go from the provincial courts to the judicial committee of the Privy Council.


The consistory courts are presided over by chancellors. Yorkshire solicitor Linda Box, who was diocesan registrar for Wakefield for 11 years after 15 years as deputy registrar, is the first woman solicitor in full-time practice to be made a chancellor. She is now chancellor of the Southwell Diocese in Nottinghamshire and the bishop’s ‘official principal and vicar-general’. She has resigned as registrar, with the position being taken over jointly by two of her partners, but will continue as senior partner of Dixon Coles & Gill in Wakefield.


Ms Box was the first woman to be a member of the Ecclesiastical Law Association, which represents registrars, and a founder member of the Ecclesiastical Law Society, set up in 1987. Ecclesiastical law makes up about one-third of her work. ‘The main problem is the [physical] reordering of churches, which can cause a lot of debate within parishes. As a practice area, it is certainly very specialised. And if you are a registrar or chancellor, you also have to be a communicant member of the Church of England.’


When asked if the work is commercially successful, she can but laugh at the thought. Registrars are paid a retainer which depends on the number of parishes within the dioceses, as is the chancellor, ‘which is something like £4,000 a year’. She explains: ‘We do other work as well for which you charge your usual rates. But you don’t think of the work on a commercial basis. It is more of a Christian commitment.’


Paul Morris is senior partner of Winckworth Sherwood, one of the largest ecclesiastical practices in the country, although that is still only about 10% of this medium-sized London firm’s practice. It acts for the Dioceses of London, Southwark, Oxford, Chelmsford and Rochester, as well as for the Archbishop of Canterbury. His professional work is now almost entirely for the Church of England. He is the registrar of the dioceses of London and Southwark and chapter clerk (legal adviser) to Southwark Cathedral.


‘From a legal point of view, it is very interesting – though it isn’t very lucrative. The retainer system entitles people to come for legal advice which is free at the point of delivery. We have had disputes over boundaries, exhumations, the stalking of a young woman priest, as well as esoteric points on trust and charity law.


‘Sometimes diocesan boards of finance instruct other solicitors but, in London, that would be uneconomic because we couldn’t run the registry if we didn’t also do the routine work, such as the boards’ property transactions, for which we can charge our normal rates.’


The hot topic of the moment is the review of clergy terms and conditions of service, which has now gone to the Archbishops’ Council, the ‘cabinet’ of the Church of England, with a view to formulating legislation. The clergy will continue to be self-employed, but the proposal is that those who are removed from office following a new capability process will have the right to apply to an employment tribunal.


Mr Morris says: ‘There has been a long line of case law culminating in Diocese of Southwark v Coker [1998] ICR 140, CA, where the Court of Appeal reviewed the whole area of the employment status of clergy and upheld the status quo that a curate or a vicar is not an employee but an office holder.


‘They don’t at the moment have employment protection rights. But, having said that, if you are a vicar, I would say you have more job protection than almost anyone else in the country because you have a freehold. Curates, on the other hand, who have a licence from the bishop giving them authority to minister in the parish, have less protection because the bishop can terminate the licence on reasonable notice, which received wisdom says is not less than six months, with no right of appeal.


He adds: ‘I had an interesting case recently, which turned on whether a 2003 amendment to the Race Relations Act 1976 brought clergy office holders within its compass or whether it only applied to office holders who clearly work under the direction of another person.’


Among the responsibilities of the Church is the regulation of notaries under powers dating back to 1533. Sheila Cameron QC, who is Master of the Faculty Office, is their regulator. However, as a branch of the legal profession, they are likely to be brought under the Clementi-inspired legal services board. She says: ‘Notaries feel they have a satisfactory system of regulation in place and they are very concerned about being drawn into this new system.’


For current Law Society President Edward Nally, his role as solicitor for the Roman Catholic Diocese of Salford accounts for up to a third of his practice. He advises on the interaction between civil law and canon law, which governs the Roman Catholic Church, rather than ecclesiastical law.


Mr Nally started advising the diocese in 1983. He says: ‘The key component is a working knowledge of charity law, especially in relation to property transfer. It then gets more esoteric because you are often dealing with church and school sites, which brings you in touch with education law. The second, and growing, area is non-property trust work. The third area is the relationship between the diocese and its employee base.


‘I also give confidential advice to the bishop or senior clergy on sensitive matters, for instance if there is a difficulty brewing with a priest.’


He adds: ‘You don’t have to be a practising Roman Catholic to do the work in terms of the skills needed, but, if you are dealing with things that touch on moral issues, a knowledge and understanding of the Catholic ethos is critical.’


For Mr Cheetham, the work requires an enormous amount of trust from the client. ‘It is not a commercial career. It is a career that requires a great deal of common sense and tact. There is a great deal of job satisfaction from it – but I shan’t be buying a Rolls-Royce this year.’




Grania Langdon-Down is a freelance journalist