Public Bodies Bill [HL]

Lord Inglewood Excerpts

Monday 7th March 2011 Lords Chamber

Moved by

[Lord Inglewood]

70A: Schedule 3, page 18, line 21, at end insert—
“Church Commissioners.”

[Lord Inglewood]

My Lords, this probing amendment is specifically triggered by the announcement last autumn from the Church Commissioners in which they declared their intention to sell 12 paintings by Zurbarán, which are currently in Auckland Castle, County Durham. At that time it also appeared that they wished to sell the castle, but it now seems that they may have changed their mind. It was also prompted by the commissioners’ plans to sell Rose Castle, the traditional see house of the Bishops of Carlisle and one of the few places away from here where in the reign of King Edward I the English Parliaments met, and the apparent estate management muddles at Hartlebury Castle, the traditional see house of the Bishops of Worcester. Each of these bishops’ palaces and its contents is by any definition part of our national patrimony. For those of your Lordships who do not know them, they are described in the Durham, Cumbria and Worcestershire volumes of the Pevsner’s Buildings of England series, which are in the Queen’s Room in the Library. Ownership of these assets has devolved to the Church Commissioners, a public body set up by Parliament, inter alia, to hold the church’s property in a fiduciary capacity. They are in no legal sense part of the Church of England.

Traditionally, the bishops’ palaces and their associated assets, which might in shorthand terms be described as church treasures, were the property of the diocesan bishop for the time being. They were only finally vested in the Church Commissioners under the terms of the Episcopal Endowments and Stipends Measure 1943. Interestingly, the terms of the measure indicate that, in respect of this class of asset, they are not held charitably, which contrasts with the endowments of the church also held by the commissioners—those which inter alia go back to the ecclesiastical commissioners and Queen Anne’s bounty—which are held charitably. Clearly, different considerations apply to the different classes.

One of my personal, political concerns is the preservation of our heritage and I have been involved over the years in a number of ways. I also happen to have lived all my life in Cumbria and to have close family connections with County Durham where once, spectacularly ineffectively, I stood for the European Parliament. While I myself confess to a personal preference for bishops living in bishops’ palaces, just as I think the Queen should live at Buckingham Palace and the Duke of Devonshire at Chatsworth, I accept entirely that, as times change, this may no longer be appropriate. However, in such circumstances I do think it is important, in the wider public interest, that the buildings are not simply sold to the highest bidder, but rather an appropriate future use is found for them, ideally from my perspective with some diocesan involvement. I should add that I am also a communicating, albeit somewhat inadequate, Anglican. I believe as well that the best way of trying to take things forward in circumstances such as this is by discussion and negotiation rather than by confrontation. To that end I and some like-minded colleagues approached the Church Commissioners to see how that might be achieved for Rose Castle, and a number of cordial meetings have been held with the Church Commissioners and their officials, at some of which I have been present. The commissioners are aware of my amendment.

On each occasion, I was struck by the commissioners’ proposition at the heart of the debate that, once a see house is declared unsuitable by the commissioners, it then becomes part of the church’s endowment and can therefore subsequently be handled only in order to achieve the maximum financial benefit for the Church of England, that being an inevitable consequence of being charitable. This proposition worried me. I do not want to make any claims for my abilities as a lawyer, but it felt all wrong in the terms in which it was put. Over a period of weeks and months I kept on thinking about this and could not reconcile myself to it. Finally, not all that long ago, I turned to the Episcopal Endowments and Stipends Measure 1943, and I have to admit that I was extremely startled by what I found. I must apologise to your Lordships because my remarks now become a trifle esoteric, not least since I dare say that, over the years, the Episcopal Endowments and Stipends Measure 1943 has rarely been mentioned in this Chamber.

I was surprised because inter alia the measure contains quite comprehensive stipulations regarding see houses, their adaptation and disposal in order to safeguard—to use a shorthand form of words—their heritage, importance and value. In the case of Rose, I knew that the steps had not been taken. It crossed my mind that it was conceivable that the commissioners might have unilaterally flouted the statutory requirements, but I have to admit that I did not think that was very likely. I therefore read the measure in detail and with considerable care, and I suddenly realised that, because of what I am sure was probably a drafting error, it appeared that it might be argued that the commissioners could go through what looks like a loophole and entirely get round the protection offered by the measure. Clearly, that is one of its most fundamental purposes.

By virtue of the provision at paragraph 3(1)(c) enabling the commissioners “otherwise to dispose” of a see house, the safeguards expressly in place to protect such houses in the case of demolition, conversion or sale have been—I am sure unintentionally, as I have said already—entirely bypassed. By the device of transferring, that is, disposing, of the see house into another category of asset that they hold as an endowment, the commissioners now appear to be arguing that they are obliged to turn them into cash cows. I have serious doubts about the legal effectiveness of this, but as I have already mentioned, I do not want to claim to be a better lawyer than I am. Hence I have sought and been given some informal advice by a Chancery lawyer that, in his view, this probably does not work. Nevertheless, it might be, as the commissioners are arguing, an ingenious way of selling one’s own or, for that matter, yours and my heritage for a mess of pottage. The transfer would have the effect of the philosopher’s stone in turning a see house subject to significant heritage obligations into gold. It is a form of money laundering which looks as if it may be being used to get round the clearly laid out purposes of the law of the land in order to benefit the commissioners. Even if it is a legally effective course of action, which I doubt, this seems to be a quite unacceptable exercise of its powers by a public body. In my opinion, the behaviour of the commissioners needs to be looked at. The Public Bodies Bill—as I have said, the Church Commissioners are a public body—gives the Minister powers to effect changes to the governance of bodies by order. I think we should think about this.

However, I shall conclude with three points. First, the Minister told me informally some time ago now, and before he had heard my remarks today, that while the Church Commissioners fell within the terms of the Long Title of the Bill, it was not government policy to deploy the powers in respect of them. Having heard what I have said, I hope that he will think on what I have been talking about. Secondly, through him and independently as a Member of this House, I would ask the Attorney-General, who one will appreciate is an ex-officio Church Commissioner, to look into this matter straightaway. In particular, and without prejudice to any other matters, will he consider whether what the commissioners are doing in these cases amounts to a disposal in the terms of the measure? If it does, is it being achieved by the commissioners in breach of their fiduciary duties? Thirdly, if the commissioners have behaved within the law, is their behaviour in all the circumstances an appropriate exercise of powers by a public body? Perhaps the Attorney-General would let me and the House know—before Report if he can—his general response to this request.

Finally, perhaps I may ask the right reverend Prelate to say on behalf of the commissioners whether, bearing mind what I have suggested and fear may happen, they will impose an immediate moratorium on all the manoeuvres and plans for sale in respect of these bishops’ palaces until a thorough investigation is carried out. I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I have enjoyed listening to the debate, but I share some of the noble Baroness’s observations on it. Perhaps it is the lateness of the hour. There is scarcely enough time to consider a topic as significant as this. I think I would have enjoyed the debate more if it had not been in the Public Bodies Bill, but it is clearly not an appropriate topic for this Bill, so I am going to address my remarks purely on those grounds. I think the House may well discuss methods whereby the scrutiny of church affairs could be brought back to this House in some way, but that is a matter for the House authorities. It is certainly not a matter for the Public Bodies Bill.

There are three reasons why the Government cannot accept this amendment, and they have been said. The first is that the Church Commissioners fall outside the scope of the Bill. They are not a non-departmental public body but essentially a non-governmental body and a charity under the scrutiny of the Charity Commissioners.

The second reason is the historic relationship between Parliament, government and the Church of England—perhaps we have seen why this separation of the estates is so important in the nature of the debate that we have had this evening. Since the enabling Act 1919 set up the Church Assembly, now the General Synod, it has been accepted that Parliament does not in practice legislate on the internal affairs of the Church of England without its consent. The mechanism laid down in that Act for legislating on the Church of England included the constitution of the Church Commissioners through synodical measure. There are, of course, methods by which Parliament can put pressure on the church to act, but the noble Lord’s amendment seeks to return to a position in which Ministers would have a direct power to intervene in the governance of the commissioners.

The third reason is that the commissioners’ board of governors, of which the right reverend Prelate is chairman, as trustees of a charity, are under a fiduciary duty to manage their assets in the way that best enables them to achieve their charitable purposes. It is therefore for them to determine how best to do so, including by deciding whether to dispose of particular assets. It is not a matter for Ministers to regulate in the case of this or any other charity. I therefore urge the noble Lord to withdraw his amendment.

[Lord Inglewood]

My Lords, I thank all noble Lords who have taken part in this debate. I must say that when I moved the amendment I had no idea what direction the debate would take, but I did not anticipate that it would move in the way in which it did. I particularly thank the right reverend Prelate the Bishop of Leicester for arguing the case that he did in the way in which he did, and I thank my noble friend Lord Deben for his counter point. In a way, it drew a lot of the argument into the open and made it clear that these issues are perhaps not as clear as we all like to think they are at first blush. The right reverend Prelate the Bishop of Chester asked me whether I would withdraw the use of the words “money laundering”. I shall do so, although what I actually said was “a form of money laundering”, and I bracket those words with “the philosopher’s stone that turns base metal into gold”.

I will make one technical point and then one more general point. The technical point is that the Church Commissioners are not completely charitable. The point of the 1943 measure is that they hold certain funds that include the bishops’ palaces, which are not held charitably—and I base that not on my own inadequate legal knowledge but on Halsbury’s Laws of England in the Library of the House. The relationship between the Charity Commissioners, the Church of England and its assets is perhaps not as straightforward as any of us quite think.

I will also make a point that no one else has made this evening but which I feel has something to do with this. In religious matters, enthusiasms gain prominence from time to time—we have seen this in a number of areas, such as the Reformation and the iconoclasm of Byzantium—in which so enthusiastic do people become about a particular way of looking at things that they perhaps feel that they can ignore everything else in the pursuit of it. My sense as an individual, as one of the foot-soldiers in the Church of England, is that there is currently a great movement against the kind of things that I was talking about. I hasten to add that I hope your Lordships noticed that I never said that bishops should live in bishops’ palaces; I said that if bishops ceased to live in bishops’ palaces, proper and legitimate steps should be taken to look after the heritage interest that they represent. I added in parenthesis that I had a personal preference in that direction, but that is quite different. I am concerned that, if we have a kind of cultural revolution, as we have seen from time to time in churches, the Red Guards should not destroy all the things that matter in effecting the changes that they want to see.

It is ultimately for the Church of England to decide what it wants to do but I believe that we all have a legitimate interest in the assets of the Church of England and that society as a whole has a legitimate interest in what happens to them. After all, these particular buildings are listed and the civil authority is not simply decoupled from them.

It is late. We have had a lot to think about, and I hope that we shall continue to think about it. I beg leave to withdraw the amendment.

Amendment 70A withdrawn.