Ownership and power

This is an abridgement of The Venerable Normal Russell's submission concerning the removal of the ownership of parsonages from incumbents in their parishes to dioceses and their finance men

The second McClean Report recommended that the ownership of churches, churchyards and parsonage houses should be transferred by Measure from the freehold ownership of the incumbent to the relevant Diocesan Board of Finance. In the General Synod debate, it became clear that the proposal to transfer ownership in this way touched important chords of local loyalty and, though staunchly defended by the committees representatives, it was agreed that in taking the process forward, the ownership of churches and churchyards should be left as they are.

An odd form of ownership

Rectories and vicarages raised somewhat different issues. One of the most serious concerns was that, should a diocese become insolvent, rectories and vicarages would become available to creditors if their title had been transferred to the Diocesan Board of Finance.

It does of course have to be acknowledged that 'ownership' by an incumbent is very different from what is normally thought of today as ownership of a house. Rectories and vicarages can perhaps most helpfully be seen as being held in trust to house the rector or vicar for the local parish or multi-parish benefice, not primarily for the diocese.

I was unable to see why, if a diocese could not manage its financial affairs competently, parishes should as a consequence lose the house held in trust for a resident incumbent. This point was taken and the current recommendation is that parsonage houses should be transferred to the ownership of Diocesan Parsonage Boards: they would not then form part of the corporate assets of the diocese, and should therefore not be available to creditors. However, I still believe that it would be better to leave things as they are for a combination of reasons.

Nothing proven

1. The need for change has not been clearly demonstrated. If there is a clear need for change in the ownership of rectories and vicarages, it has not been sufficiently clearly articulated for me to understand it. What reasons have been given?

(a) It seemed like a good opportunity to tidy up the law. The driver for the Common Tenure enterprise was the 1999 Employment Relations Act. There was thought to be a need to address the terms and conditions on which clergy are (quasi) employed. But to do so did not require that the ownership of parsonage houses be transferred.

It may be that there is a case for taking a long, hard look at church housing generally. The issue of inadequate provision for clergy retirement is now widely recognized as being an urgent problem. These issues can be considered, but it has not been satisfactory to have them addressed as an appendix to clergy terms of service.

(b)  Common Tenure would not then be common. There is great variety in the ownership of houses, with some being provided by the dioceses from the corporate funds of the DBF, some from glebe funds and some by the PCCs or other trusts. But the majority, and therefore the commonest type of housing, remains the 'benefice house,' even when the benefice is suspended.

One of the aims of introducing Common Tenure is the lifting of these suspensions and the restoration of security of office to those clergy who currently have no security as priests-in-charge. The overwhelming majority of clergy will then be incumbents in their benefices, occupying the commonest type of clergy housing we have in the Church of England. 'Common' need not necessarily mean 'uniform' in relation to property.

Always exceptions

Even with Common Tenure there will still be exceptions, e.g. service, school, college and hospital chaplains, and clergy in royal peculiars. Much as I support the generality of Common Tenure proposals, it is important not to insist on Common Tenure in the small number of cases where it does not easily fit. This could well distort other provisions of importance. The justice of Common Tenure has to be held in balance with other legitimate considerations.

(c)  As the diocese carries the repair liability for parsonage houses, it makes sense for the diocese to own them. Why? Most of the revenue income of dioceses comes from the parishes via the parish

share. Indeed, in most dioceses, dilapidations expenditure is listed in diocesan publicity as one of the major items for which parish share is needed.

The CofE would be unwise to embrace this as a principle. It would offer an open invitation to Government to transfer school assets by Act of Parliament to the Department of Education or Local Education Authorities, as church schools are almost entirely funded by central and local government.

(d) The form of ownership is arcane and it is not really ownership as we normally understand it. Both assertions are true, but it is always unwise to rush to dismiss the wisdom of the ages as being simply old-fashioned. In both church and state, constitutional change should only be undertaken with care and its implications fully thought through. One does not have to be a Marxist, to see that the centralization of between 3 billion and 4 billion of dispersed assets (of comparable scale to the assets of the Church Commissioners!) would have major constitutional implications for the CofE.

There is actually little that an incumbent can do as 'owner' of the vicarage without the agreement of others. The significance of his/her 'ownership' lies more in what the incumbent can stop others doing - sometimes negative, as archdeacons well know, but not always so.

Further considerations

2.  Checks and balances. The polity of the Church of England, as it has evolved over the centuries, has allowed a wide range of traditions and churchmanships to flourish. Although not a designer masterpiece, the oddities of patronage, security of tenure and the particular form of dispersed ownership of churches, churchyards and parsonage houses are part and parcel of the checks and balances within the CofE. This polity is quite different from the centralized power structures and relatively monochrome churchman-ship evident in at least some provinces of the Anglican Communion. It is worth defending.

3.  A domino effect? Transferring the ownership of parsonage houses from incumbents to Diocesan Parsonage Boards requires amendment to a great deal of church law. We are fortunate to have skilled drafters of legislation working for the Archbishops' Council, but the scale and complexity of the church law involved is such that unintended consequences are almost inevitable. Some of these consequences are probably unpredictable. Is all this wise when it is completely unnecessary? Some cans of worms are best left unopened.

4. The issue of power. It is said that history is written by the victors. When there are serious disagreements and bitter conflicts in the Church, as is sadly the case within the Anglican Communion at this time, without proper constitutional protections those who command the majority of whatever stripe are apt to claim the property. Most of us would like to think that the unseemly property grabs which have been reported elsewhere would not happen in the CofE.

The wisdom of ages

Has not the local ownership of property been a significant factor in the development and protection of 'our way'? It has given the clergy, over many generations, the security to assert unpopular theological beliefs and to defend liturgi

cal practices with which their bishops and archdeacons have not always been comfortable. This is not too great a price to pay for the healthy diversity of the traditions that have renewed the Church's life, when they might otherwise have been stifled by fear, or simply driven out.

5. Legitimate clergy concerns in the current climate. There are two questions which have been raised and to which, to the best of my knowledge, no adequate answer has yet been given, viz what would be the implications for incumbents of the transfer of the 'ownership' of parsonage houses to Diocesan Parsonage Boards should a diocese have an overweening bishop: (i) if there were to be no realistic provision for clergy unable to accept the validity of the orders of a woman bishop? (ii) in the case of English clergy finding themselves in a similar predicament to those currently committed to a traditional understanding of faith and morals in (say) the Diocese of Virginia, when the bishop is able to assert that parsonage houses belong to the diocese?

6.  Security of vesting in Diocesan Parsonage Boards. In almost all dioceses, the Parsonages Board has in practice become a sub-committee of the Diocesan Board of Finance. Although it has a separate legal existence, in many places that has almost been forgotten and it is often seen as the Buildings Committee of the DBF. Moreover, sometimes at the behest of the auditors, many dioceses have for some time been treating parsonage houses as part of the corporate assets of the DBF on their balance sheet.

I have been advised that were parsonage houses to be subject to a charge and used effectively as the assets of the DBF, or seen by outsiders as assets of the DBF, the fact that the property has been transferred by Measure to the ownership of the Diocesan Parsonages Board might not be upheld against the claims of creditors, particularly in the case of a floating charge.

This is a matter on which there is more than one legal opinion among ecclesiastical lawyers. Unfortunately, this fact has not yet found its way into a public arena. Both the Revision Committee and the Ecclesiastical Committee of Parliament would be helped if the differences in legal opinion could be pursued further in an appropriate professional forum, before the draft legislation returns to the floor of the General Synod. \ND\

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