Whether owners of former glebe land liable to defray cost of repairing chancel of parish church — Whether appellant church council constituting a public authority within section 6 of Human Rights Act 1998 — Whether action unlawful by reason of European Convention on Human Rights — Appeal allowed
The respondents owned a farm on glebe land that in 1743 had been allotted to a former owner by an inclosure award in exchange for other land that he owned in his capacity as lay impropriator of the rectory. By virtue of that fact, all subsequent owners of the glebe land, including the respondents, were lay rectors of the parish, a position that carried with it a legal obligation to maintain the chancel of the parish church. The power to enforce that obligation rested with the appellant.
The chancel of the church fell into serious disrepair. In 1994, the appellant served a notice on the respondents, pursuant to the Chancel Repairs Act 1932, requiring them to repair it. The respondents disputed their liability, and the appellant issued proceedings, under section 2(2) of the 1932 Act, to recover the estimated repair costs of more than £95,000.
A preliminary issue was heard as to whether the lay rectors’ liability to repair the chancel was unenforceable by reason of the Human Rights Act 1998. The judge’s decision that the obligation was enforceable was overturned on appeal. The Court of Appeal held that: (i) the appellant was a public authority obliged by section 6(1) to act compatibly with the European Convention on Human Rights; and (ii) it had breached the respondents’ rights under Article 1 of the First Protocol to the Convention and Article 14 of the Convention. The appellant appealed.
Held: The appeal was allowed.
1. For the purposes of the 1998 Act, public authorities were either “core” public authorities or “hybrid” public authorities. The latter were persons or bodies in respect of which section 6(5) required a distinction to be drawn between their public functions and their private acts. Although the test of a “core” public authority could not be defined precisely, a distinction should be drawn between governmental organisations for Convention purposes, within the meaning of Article 34, and non-governmental organisations. The latter should not be regarded as “core” public authorities for the purposes of section 6, since that would deprive them of the rights enjoyed by victims of acts incompatible with the Convention. A governmental organisation was a body that exercised public functions. The test was whether the body had been established with a view to public administration as part of the process of government: Rothenthurm Commune v Switzerland (13252/87), Ayuntamiento de Mula v Spain 55346/00, Holy Monasteries v Greece A/301-A (1995) 20 EHRR 1 and Hautaniemi v Sweden (24019/94) (1996) 22 EHRR CD155 considered.
2. Although parochial church councils formed an essential part of the administration of the affairs of the Church of England, they were not governmental organisations as that phrase was understood in the context of Article 34; nor were they “core” public authorities. Nor, in relation to the present case, was the appellant acting as a public authority. The liability of the lay rectors to repair was a private law matter arising from the ownership of glebe land; the appellant was seeking to enforce a civil debt. Accordingly, the issue of compatibility with Article 1 of the First Protocol did not arise, and the respondents were liable to pay.
Per Lord Scott of Foscote: The appellant, although not a core public authority, was carrying out a public function in enforcing chancel repair liability. Accordingly, it had to act compatibly with the respondents’ Convention rights. However, these had not been infringed in the present case.
Charles George QC and Mark Hill (instructed by Rotherham & Co, of Coventry) appeared for the appellant; Michael Beloff QC and Ian Partridge (instructed by Eddowes Perry & Osbourne, of Sutton Coldfield) appeared for the respondents.
Sally Dobson, barrister