Ecclesiastical Fees (Amendment) Measure
Debate between Lord Bishop of Exeter and Lord Cormack
The Lord Bishop of Exeter
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—
Lord Cormack
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.
The Lord Bishop of Exeter
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.