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Ecclesiastical Fees (Amendment) Measure

Volume 726: debated on Wednesday 23 March 2011

Motion to Present for Royal Assent

Moved by

That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Ecclesiastical Fees (Amendment) Measure be presented to Her Majesty for the Royal Assent.

My Lords, this is the first of three Measures before your Lordships' House this evening. It is the only one that changes existing law. The Care of Cathedrals Measure and the Mission and Pastoral Measure are consolidation Measures.

Earlier this afternoon we heard a reference from the Dispatch Box to the writings of PG Woodhouse. I was minded of that great chronicler of cathedrals and of clergy life, Anthony Trollope, who once wrote that a lawyer,

“can find it consistent with his dignity to turn wrong into right, and right into wrong, to abet a lie, nay to create, disseminate, and with all the play of his wit, give strength to the basest of lies, on behalf of the basest of scoundrels”.

I am sure that that does not apply to any noble and learned Lords in this House. Those who have laboured on these three Measures—lawyers among them—have had quite the opposite intent. The Measures are about clarification, consistency and transparency. It may be convenient for your Lordships if I speak to all three of them now.

The Ecclesiastical Fees (Amendment) Measure amends the Ecclesiastical Fees Measure 1986. It is concerned with two matters. The first is parochial fees that are payable in connection with the occasional offices of the church, principally weddings and funerals. The second is fees that are payable to the ecclesiastical judges and the church's legal officers—chancellors, diocesan registrars and others—for carrying out their official duties. I will deal first with parochial fees. A quarter of a century's experience has shown that there are aspects of the current legislation that do not well serve either the church or those to whom it offers its parochial ministry—which means, in principle, every person in England. The 1986 Measure contains a definition of “parochial fees” that has proved to be rather obscure. The General Synod's Legal Advisory Commission found it difficult to say with certainty precisely what the current definition covered, particularly in the case of crematorium funerals, which are now very common. The commission advised that the definition should be amended to make it clear which matters were covered by parochial fees.

The Measure before your Lordships' House does that. The duties that give rise to the payment of fees are itemised in a schedule. They include marriages, which have always been the subject of parochial fees. Also itemised are the different types of funeral that take place nowadays, not just those that take place in church. The opportunity has also been taken to include some of the newer occasional offices for which the Church of England service books now make provision, including services of prayer and thanksgiving after civil marriage. This should mean that people who wish to have such a service will know from the statutory table of fees exactly what they will be expected to pay, by contrast with the uncertainties of the current arrangements for these services, with fees varying from place to place.

The Measure provides a power, subject to synodical and parliamentary control, to amend the itemised list by order should that prove necessary in future. A certain amount of flexibility has therefore been built in to the new legislative framework. Parochial fees orders will continue to be made by the Archbishops’ Council, subject to the approval of the General Synod, and will continue to be laid as statutory instruments before both Houses of Parliament under the negative procedure. The existing practice has been for orders to be made annually so that the fees can be adjusted to keep up with inflation. The new Measure provides a useful facility to enable orders to be made for up to five years at a time, with inbuilt increases in the prescribed fees.

Another useful facility provided by the Measure is a power to specify the costs and expenses that are to be included in the statutory fees. Under the existing statutory framework, there is considerable variation between parishes on services that are charged as extras over and above the statutory fees. This can lead to the unsatisfactory situation, for example, where people who are getting married are surprised to be asked for substantial sums for administration, vergers’ fees and so on, in addition to the published statutory fees, a situation which a nationally applicable table of parochial fees was always intended to avoid.

There are, of course, always some genuinely optional extras that people will ask for, such as professional music and flowers. It is not proposed that these should be included in the fees that will be prescribed in the parochial fees order. However, it is envisaged that in future fees orders will specify as included in the statutory fee certain costs and expenses that are necessarily incurred in making the church available for the service. As with parochial fees orders generally, the exercise of the power will be subject to the scrutiny of the General Synod and of both Houses of Parliament.

The other main change that the Measure will bring about, while legally significant, is essentially a matter of tidying up. Under the current statutory framework, parochial fees are divided into two categories: fees payable to the incumbent and fees payable to the parochial church council. Under the Measure, fees continue to be payable to parochial church councils but the incumbent’s fee is replaced by a fee payable to the diocesan board of finance. This is not nearly as significant a change as it might seem. In practice, more than 90 per cent of incumbents assign their parochial fees by deed to the diocesan board of finance when they are appointed. They are then paid the full diocesan stipend. The small number of incumbents who do not assign their fees to the diocese in this way nevertheless declare their fee income to the diocese by sending in regular returns. Their stipends are then reduced accordingly. No one currently not assigning fees will be obliged to do so; there is a provision for them to opt out if they so wish.

Possibly contrary to public perception, parochial fees no longer benefit the incumbent directly—it is a long time now since that was the case. In providing for what used to be the incumbent’s fees to be payable to the diocesan board of finance, the Measure simply puts current practice on a proper statutory footing. This change, which reflects the reality of the situation, is in the interests of transparency and will provide legal clarity as to the ownership of the fees.

I now turn to the second aspect—

I am most grateful to the right reverend Prelate for giving way. He has not mentioned the position of non-stipendiary priests, who frequently take funerals and marriages and so on. Many parishes, such as my own, have a non-stipendiary in charge of them. Can he clarify the situation? I believe that it was made clear during the Ecclesiastical Committee’s deliberations that they will be paid directly as they are not receiving a stipend.

I am very grateful to the noble Lord, Lord Cormack, for raising that important point for clarification. This Measure will aid the process because diocesan boards of finance will now be encouraged to have a policy. That will mean that not only self-supporting ordained ministers but, for example, readers, who in certain rural areas in my diocese take a considerable number of funerals, will have provision made for their remuneration. Therefore, again, this is a useful outcome of tidying up the procedures.

I turn to the second aspect of the Measure—the changes relating to ecclesiastical judges’ and legal officers’ fees. Fees are payable to diocesan chancellors in respect of their judicial work—principally the exercise of the faculty jurisdiction in respect of church buildings and their contents. They are also payable to diocesan registrars for the wide range of legal work that they undertake for the bishop and other officials and bodies in the life of the diocese. These fees are prescribed annually in fees orders that are ultimately laid before both Houses of Parliament as statutory instruments. These fees orders are made by a specially constituted statutory body—the Fees Advisory Commission.

Under existing statutory provisions, the commission is constituted in such a way that half its membership consists of lawyers. The current balance was considered by the commission to be not entirely satisfactory. Following a review of its constitution and functions, two specific changes were proposed, and these are provided for in the Measure that is now before your Lordships’ House.

The first of these changes is the reconstitution of the Fees Advisory Commission so that its membership consists of three elements: the users of the legal services, in the form of a bishop, a Church Commissioner and a chairman of the diocesan board of finance; the providers of legal services, represented by a chancellor, a provincial registrar and a diocesan registrar; and an independent element in the form of persons appointed by the Church of England’s Appointments Committee.

A minor change is also made to the commission’s functions. It will be required to keep itself informed of the duties of the judges and legal officers who receive the fees that the commission prescribes. This is intended to ensure that in arriving at levels of fees, the commission does so on a properly informed basis.

As the material contained in the report of the Ecclesiastical Committee shows, the Ecclesiastical Fees (Amendment) Measure received detailed and thorough scrutiny during its passage through the Synod, both in committee and at the revision stage in full Synod. It received overwhelming majorities in all three houses of the General Synod at final approval. The Ecclesiastical Committee is of the opinion that the Measure is expedient and I am pleased to commend it to your Lordships’ House.

I shall not need to detain your Lordships long on the other two Measures. As I mentioned, they are both consolidation Measures. They do not change the law; they simply consolidate in single Measures all the enactments relating to particular subjects. Perhaps I might add that this is something that Parliament itself might consider doing with secular legislation.

The Care of Cathedrals Measure consolidates the Care of Cathedrals Measure 1990, which made provision for the care and conservation of cathedrals, and a number of subsequent enactments that either added to its provisions or amended it. The Mission and Pastoral Measure consolidates the Pastoral Measure 1983—itself a consolidation of a number of enactments that were “designed to make better provision for the cure of souls”—together with a long list of subsequent enactments that have amended it in various ways. In fact, consolidation of the Pastoral Measure was first suggested by the chairman of the Ecclesiastical Committee, the noble and learned Lord, Lord Lloyd of Berwick, who has asked me to say how sorry he is not to be in his place this evening. If I may respectfully say so, that was a most helpful suggestion and it is one that we have been pleased to adopt. We saw the benefit of doing the same with the care of cathedrals legislation. I therefore also commend these Measures to your Lordships’ House. I beg to move.

My Lords, we are debating three ecclesiastical Measures tonight and I am most grateful to the right reverend Prelate the Bishop of Exeter for his very clear explanation. The Ecclesiastical Committee has considered these matters and is of the view that they are expedient. It is noticeable that in the General Synod there was unanimous support for the Care of Cathedrals Measure. There was also almost unanimous support for the Mission and Pastoral Measure. In relation to those two Measures, such support is clearly significant. With the Ecclesiastical Fees (Amendment) Measure, it is noticeable that in Synod the votes in the House of Clergy were 99 for the ayes and 10 for the noes, and, in the House of Laity, 115 for the ayes and nine for the noes, so there was clearly a moderate measure of disagreement. Perhaps the right reverend Prelate would be prepared to comment on the debate and on the reasons why some members of the Synod opposed the Measure.

I have of course taken note that in its 229th report the Ecclesiastical Committee is very clear on these Measures, as was the right reverend Prelate. The committee points out the defects in the current legislation and the recommendation of the Deployment, Remuneration and Conditions of Service Committee. Reading the various papers that have been produced for our debate tonight, it is noticeable that some of the arguments were put forward to the Revision Committee—particularly, first, that the Measure breaches the right in general law of any person to enter into a contract to carry out services and to receive payment, and, secondly, that it possibly breaches human rights. However, the advice received by the Revision Committee looked pretty persuasive to me. As I said, I also noted that many other points were put to the Revision Committee, and they appear to have been considered very carefully. Overall, I am very much persuaded that these Measures should be supported by your Lordships’ House.

I also noted from the deliberation that took place on 30 November that, in an answer to my noble friend Lord Bilston, we were reassured that payments to choirs, bellringers, organists, florists and suchlike are not covered by the statutory fees. My noble friend reminded noble Lords that he led a strike nearly 60 years ago, when he wanted to increase the stipend—I assume this was as a choirboy—from a shilling to two shillings:

“We had a very recalcitrant clergyman who wouldn’t concede that point. I thought it was quite a legitimate increase. So we had to go and sit on the church wall for an hour during the month of March—as you know, the tax issues were very relevant then. I led the choir out to sit on the wall for an hour before the next marriage. We are talking about marriages or funerals. After the hour, the vicar came out and offered us the two shillings and we went back and sang with gusto”.

It is a remarkable read and it pays testament to the thoroughness with which both the Synod and the Ecclesiastical Committee have gone through these matters. I am sure that we should support them.

My Lords, I will speak briefly. I was delighted that the noble Lord, Lord Hunt, quoted Lord Bilston. It made me feel very nostalgic for the Ecclesiastical Committee, on which I served for 40 years—probably a record. I also served on the General Synod for 10 years. I am bound to say that not every piece of legislation sent by General Synod to your Lordships’ House and the other place had my warm approval. It is incredibly important, as we have an established church, that both your Lordships’ House and the other place have a proper opportunity to debate the Measures that come before us. I am very glad to see that the noble Lord is nodding so vigorously in assent. I am very proud of the fact that we have an established church. Of course, the right reverend Prelate the Bishop of Exeter made the point—very gently—in his extremely cogent and clear speech, that every single person in England is entitled to the ministrations and services of the Church of England. That is something which people of all faiths and none frequently have cause to be truly thankful for. It is important, therefore, that we should be debating these things.

I would make two very brief points. The first expands on what I said in my intervention. The Church of England, particularly in rural areas, is becoming increasingly dependent upon the services of non-stipendiary ministers and of lay people. There is something good about that, but there is also something that the church needs to devote very real and constructive attention to; the business of the retirement age of clergy. There are many clergy over the age of 70 who wish to carry on but who are not able to do so. I do not want to embarrass someone by mentioning him by name; I have not had a chance to consult him. But very recently, an extremely popular vicar in a very major Lincolnshire parish—my home county, as distinct from my county by adoption, Staffordshire—did not wish to retire. He was in full and vigorous health—after all there are many in your Lordships’ House, including me, who are over the age of 70 and still play, one hopes, a constructive part in the affairs of the nation. This vicar did not wish to retire. His parishioners were distraught at the thought of his retiring. Yet he had no alternative. It is a pity when we have a rigid retirement age. Of course, if people want to go beforehand, fair enough. But we are increasingly dependent on those who have retired and then give their services, particularly in rural areas. Without them the Church of England would not be able to give the ministration it does to the people of this country. I hope it is something that will be borne in mind in future deliberations of General Synod and of the Archbishops’ Council, et cetera.

The second point I want to make very briefly is on the cathedrals Measure. The right reverend Prelate the Bishop of Exeter did not really deal in any detail with this. He merely said it was a consolidation Measure, which it truly is—a very good one at that. I warmly commend it. It gives us an opportunity to reflect upon the centrality of the cathedral in every diocese; the fact that our cathedrals—particularly our great medieval cathedrals—are among the greatest, if not the greatest, buildings in this country. Who could imagine Ely without its cathedral; Lincoln or Durham without their cathedrals; Salisbury without its cathedral? Exeter? One could go on.

Chichester, indeed—a good interjection. In the 19th century its spire blew down, as I remember, and that underlines the vulnerability of any great but old and fragile building. The church does shoulder—very willingly, I am glad to say—the burden of sustaining these extremely wonderful buildings, but there is a national responsibility beyond that.

My very first parliamentary exercise was to introduce the Historic Churches Preservation Bill way back in 1971 in the other place. From that we got state aid for churches, and later we got state aid for cathedrals. Without the money that has come more latterly through English Heritage, our cathedrals would have been in a much more parlous state than they are, notwithstanding the dedicated service that those who minister within them give. We ought to register in this brief debate that no country deserves to call itself civilised if it neglects its greatest architectural glories.

It is good that in this consolidation Measure the church is tidying up its own approach, making it more cohesive and coherent—I warmly commend that—but there is also a continuing obligation upon us to ensure that the nation outside the Church of England plays its part in ensuring that these great marvels of ecclesiastical architecture can be enjoyed by future generations.

My Lords, I associate myself with the words of the noble Lord, Lord Cormack. We have had many opportunities in different capacities—in the arts and heritage group, once chaired by the noble Lord, through to many other hats that we wear—to see the increased pressure on cathedrals, with York, Canterbury and so on having bits literally falling off. One wag asked why we do not have the tower sponsored by Burger King. More seriously, the Church of England does not want to go in the direction of a state fabric authority as in France. There are very many reasons why France and Britain do not have the same history, but in this connection it might be a marker for the future; the situation is increasingly unstable. With 14 cathedrals knocking simultaneously at the door of every merchant banker in the country, we might ask whether or not it is proper for HMG to be more forthcoming about its public policy assessment of the scenarios for the future. I do not know what toes I am treading on in saying that, but these questions have very wide ramifications.

My Lords, I also thank the right reverend Prelate the Bishop of Exeter for so expertly setting out the contents of these three Measures. The Measures referring to the care of cathedrals and the ecclesiastical fees might well be described as tidying-up pieces of legislation, but that in no way should detract from their importance. The way in which these items, which are most timely, have been handled—not only through Synod, which has been extremely thorough and careful over its deliberations, but also, if I may say, through the Ecclesiastical Committee—gives me confidence to commend these three Measures to the House.

I begin by associating myself with the remarks of the noble Lord, Lord Laming, about the immense amount of work that has been done to get the Measures tabled, and congratulate the right reverend Prelate on his introduction of them.

The Measures do not deal with the level of fees. They state how they are to be set—there is a great infrastructure for that—but there is a big issue about how we should set the fee. When I raised that question in the Ecclesiastical Committee, the response was that, at the moment, if anyone asked the church to justify the figures in terms of actual costs, it would be hard put to do so. An attempt was to be made to work up a realistic estimate of the cost of providing authorised ministry buildings, and so forth.

If I may say so, that will require the judgment of Solomon. First, the amount of authorised ministry—I declare an interest as a clergy spouse—varies so enormously from case to case. Certainly with funerals, the amount of time that can be taken where there has been a tragic death in the family is phenomenal, and is one of the most important things that the clergy do. That is extremely difficult.

I also hope that, without wanting to ramp the fees up, the committee or sub-committee that looks into it will not just look at the marginal costs. Going back to the point about cathedrals, you cannot have a wedding in a church unless the church has been kept up for the years before the wedding. Simply charging for so many hours of the clergywoman's time plus a bit of heating costs and whatever does not get to the bottom of the real value.

I also had a slightly mischievous thought when the right reverend Prelate was talking about a national table of fees. Some churches are extremely sought after, particularly for weddings. It is not because the population of the parish is particularly devout. It occurred to me that without necessarily adopting the Ryanair approach to pricing for churches, there is a different quality between a wedding conducted in a country church in July and in an inner-city church in January. I wonder whether it might be possible to contemplate seasonal variation.

We might need to have a rebate in the event of rain. Some people get married in a particular kind of church at a particular time of year purely because they are paying for a better facility. In these harsh economic times, the church ought at least to explore that possibility.

Having read the Measures, I was intrigued particularly by Parts 6 and 7 and wanted to question a little further. My prompt for asking this question was a walk on Saturday through my home town of Gateshead. I walked past about six different church buildings with my father. As we were walking, we were estimating the congregations in each of those six different church buildings, which happened to include two Anglican, a Baptist, a Salvation Army and a Methodist church. We estimated that the congregations in the six buildings were in the region of 150 or 200 for all of them.

As this is a consolidation measure, which deals in Part 6 with the use of places of worship, one wonders about underutilisation of church buildings and how that could be addressed. When he comes to respond to this short debate, perhaps the right reverend Prelate can comment on what consideration is given to better use of existing buildings, because there are a lot of opportunities there.

That links with Part 7, which has some excellent language which talks about local ecumenical partnerships working with different denominations in pursuit of, in that quaint phrase, the cure of souls, in the local area. That provision within the mission in Part 7, if replicated in the building regulations in Part 6, could lead to some interesting collaborations which would be for the benefit of communities. There are now many ways in which those buildings could be used. They could be used for schools, going back to their original purpose. Why could not the church building be used for them? They could be used for housing.

Is the noble Lord aware that 40 per cent of all free schools are religious schools? Does he agree that in fact there is considerable concern about the nature of those schools—not, of course, the Church of England schools? I wonder whether he is right to encourage more free schools. I am not sure that that gets the balance right.

Faith schools have an outstanding record. The churches were in education long before the Government ever got into the business. I would like to encourage more. Housing is also a crying need, particularly in rural areas. I was talking to people in the Ministry of Justice last week, who mentioned the 80 per cent of prisoners who come out not having anywhere to stay. That would seem to be very much within the mission—not the mission set out in the Measure, but the mission as originally espoused, which was to look after the prisoners and the homeless, to feed the hungry and to clothe people.

I am simply saying that there seem to be lots of opportunities, particularly in the age of the big society, for those marvellous facilities in the centre of communities to be used much more than they are. I would be grateful to know what consideration has been given to that in the preparation of the Measures.

My Lords, I am very grateful to all noble Lords who have spoken in response to the debate. The noble Lord, Lord Hunt of Kings Heath, asked about the Synod debate and was speculating on the reason why people might have voted against. It is perhaps worth saying that Synod is a large body of 470 members, but we have no Whips. I speculate, but it may well be that a few wish to register regret at what could be seen as the final logical stage in a long process stretching back over many decades. That would not be unknown in your Lordships' House.

In the Ecclesiastical Committee, Peter Bottomley asked:

“Is there a way of indicating gently whether those opposed, not convinced or not agreeing were what you might call modernists, traditionalists or individualists?”.

To which Mr Tim Allen replied:

“From the choice of those three, probably the best answer is individualists”.

I also say to the noble Lord, Lord Hunt, that when he has a little spare time from the Front Benches over there, he would make a very good shop steward for choristers.

I am very grateful for the reminder of the noble Lord, Lord Cormack, that the church is the church of the English people. Our word parish comes from two Greek words, It means “the dwellers alongside”. I relate back to what the noble Lord, Lord Bates, said, about our churches. Some churches may have small congregations but we are not congregational churches, we are parish churches. Already, the provisions of Section 6 are enabling in many churches to be used much more creatively than they have in the past. Certainly, if you go back into the long distant past, they have been used for a whole variety of things—schoolrooms, yes, although I am not going to be tempted into a debate about schools—but other functions as well. Particularly in rural areas, but I could also take you to churches in urban Plymouth, churches are now used seven days a week in the service of the community, which is precisely what the parish church exists to do.

The noble Lord, Lord Cormack, reminded me that he has spent four years checking ecclesiastical legislation and declaring it expedient. So when I am in one of my grumpy old man moods, worrying about the pace of change, I now know who to blame.

I am also grateful to the noble Lord for pointing to the centrality of cathedrals in the life of the diocese, and the importance of us shouldering together the responsibility for maintaining these wonderful buildings. I say again that our church buildings are probably better maintained now than they ever have been. It is a huge tribute to those who worship within them, but also to the wider community. My own cathedral church is two-thirds of the way through raising £9 million. Much of that has been raised by the people of the wider community of Devon. We look to the support that we receive from agencies of the state, or associated with the state. I pay tribute to the work of English Heritage. A lot of us are hugely grateful for the continuation, albeit in a more limited way, of the listed places of worship grants scheme, which is a real help to many parish churches. I am grateful for those, and to the noble Lords, Lord Lea and Lord Laming, for making those same points.

I am grateful to the noble Lord, Lord Newby, for that recognition of the huge amount of work that goes into providing pastoral ministry and how it varies from place to place. It has never been the intention that a parochial fee should be set to realistically cover all those costs—including the dilapidation costs of the building, if you want to call them that. It is intended that it should be fair and affordable, and should not place any of these occasional offices beyond the reach of those who need them. The noble Lord tempts me into some interesting byways, with his suggestions of seasonal variations and perhaps a higher fee for a service taken by a bishop and a lower one for a service taken by a Lord Spiritual. I will not be tempted on that.

The only thing that I have not touched upon is the retirement age of clergy. As someone who could retire this summer, and will be forced to retire in five years’ time, I am quite tempted to respond personally to that. The retirement age is at present prescribed by statute as 70, although bishops have discretion to allow incumbents to remain for up to two years. Indeed, archbishops can exercise discretion in relation to bishops, but only for up to one year. The church will consider that in the future, in the light of the raising of the retirement age generally, but change will require an amending Measure. It may be that your Lordships, having already heard me speak seven times this week, would like to keep the present retirement age enforcement. I commend the Ecclesiastical Fees (Amendment) Measure to the House.

Motion agreed.