Chancel repairs –– Chancel Repairs Act 1932 –– Whether liability of lay rector of part of rectorial lands uncertain –– European Convention on Human Rights –– Article 1 of First Protocol –– Articles 9 and 14 of Convention –– Whether law on chancel repair liability breaches Convention
The defendants were owners of land within the parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire. Their land included a field that became rectorial property, although only part of the rectorial property in the parish, as a result of its allotment to a predecessor in title under an inclosure award in 1743. On their acquisition of the field, the defendants became lay impropriators (lay rectors) of the parish. In 1994 the claimant parochial church council served notice on the first defendant, as the then sole owner of the field, in accordance with the Chancel Repairs Act 1932, stating that the chancel of the parish church was in disrepair and calling on her to put it into proper repair. The claimant commenced the present proceedings, the second defendant being later joined as a party, in which Master Bragge ordered the trial of certain preliminary issues, including the question of whether the liability of the lay rector to repair the chancel, or otherwise to meet the costs, by reason of the Chancel Repairs Act 1932 and the common law, was unenforceable by reason of the Human Rights Act 1998. The defendants contended that: (1) English law was not yet settled in deciding that a lay rector was liable for chancel repairs, at any rate where the land in question was only part of the rectorial property in the parish; and (2) if the law was uncertain on this basis, this would involve a contravention of one or more rights under the European Convention of Human Rights, namely Article 1 of the First Protocol and Articles 9 and 14 of the Convention.
Held: (1) There was no basis for declaring the law to be uncertain as to the liability of a lay rector. The decided authorities showed that a lay rector who had the whole of the rectorial property was, in the absence of a custom to the contrary, liable to repair the chancel of the parish church. The position was the same where a lay rector had only part of the rectorial property. (2) If, to the contrary, the law was held to be uncertain, this would not involve a deprivation of possessions and there would be no contravention of Article 1 of the First Protocol. The liability for chancel repairs did not affect the defendants’ freedom of religion for the purposes of Article 9 of the Convention, nor did it involve discrimination under Article 14.
The following cases are referred to in this report.
Bishop of Ely v Gibbons (1833) 4 Hagg Ecc 156
Chivers & Sons Ltd v Air Ministry [1955] Ch 585; [1955] 3 WLR 154; [1955] 2 All ER 607
Darby v Sweden A/187 (1991) 13 EHRR 774
Derbyshire County Council v Times Newspapers Ltd [1992] QB 770; [1992] 3 WLR 28; [1992] 3 All ER 65; (1992) 90 LGR 221
Hauxton Parochial Church Council v Stevens [1929] P 240
James v United Kingdom (1986) 8 EHRR 123
Pittalis v Grant [1989] QB 605; [1989] 3 WLR 139; [1989] 2 All ER 622; [1989] 2 EGLR 90; [1989] 28 EG 126
Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417
This was the hearing of preliminary issues in a claim under the Chancel Repairs Act 1932 by the claimant, the parochial church council of the parishes of Aston Cantlow and Wilmcote with Billesley, Warwickshire, against the defendants, Gail R Wallbank and Andrew David Wallbank.
Sarah Asplin (instructed by Rotherham & Co, of Coventry) appeared for the claimant; and Ian Partridge (instructed by Eddowes Perry & Osborne, of Sutton Coldfield) represented the defendants.
Giving the judgment of the court, Ferris J said: In this case, I have to determine a preliminary issue that depends upon the interaction of the law relating to the repair of the chancels of certain ancient parish churches of the Church of England and the European Convention on Human Rights.
The law relating to the repair of the chancel is succinctly stated in the following passage from Halsbury’s Laws of England (4th ed) vol 14, para 1100:
At common law the repair of the chancel of an ancient parish church was the obligation of the rector of the parish, whether spiritual or lay, in the absence of custom to the contrary, and a lay impropriator in receipt of the rents and profits of the rectory was liable for repair even where at the time he purchased the land forming part of the rectory he had no notice of the liability.
Later in the same paragraph it is said:
The liability of a lay impropriator to pay the costs of repair is personal and several and not joint, and is not limited to the profits of the rectorial property received by him but, on payment of the cost of the repairs, he is entitled to obtain contribution from persons subject to the same liability to repair.
The reference to “the rectory” in the first passage is, of course, not a reference to the dwelling occupied by the rector, but to all the property that belongs to the rector of the parish in his capacity as rector. The way in which a rectory, in this sense, may have come into the hands of a lay person (the lay impropriator), as the result of the acquisition of the advowson, or right of appointment to a rectory, by a monastic foundation and the subsequent dissolution of the monasteries in the reign of Henry VIII, is the subject of an illuminating account set out in appendix B to a report of the Law Commission on “Liability for Chancel Repairs” (Law Com No 152) published in November 1985. Land may become part of the rectory in a variety of ways. In particular, it may always have been rectorial property, or it may have been allotted to the rector under an inclosure award in lieu of the right to receive tithe or in lieu of other rectorial property. Under the Chancel Repairs Act 1932, the obligation to repair the chancel is now enforceable by means of a money claim brought by the relevant parochial church council in the country court.
The law, as I have summarised it, has been subject to severe criticism. In Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417, Eve J, sitting as the third member of the Court of Appeal, and finding himself constrained to agree with the judgments of the two lord justices who preceded him in finding the defendant liable to pay the sum of £123 for chancel repairs, said at p445:
the result of those judgments does not appear to me to be at all reasonable and just and, would seem to be one to which the attention of the Legislature might properly be directed.
Professor JH Baker began a note on the subject in (1984) 100 LQR 181 by saying:
The Law Commission, in para 3.1 of the report already referred to, described the law as:
anachronistic and capricious in its modern application…
It recommended legislation under which the liability of a lay impropriator to repair the chancel would be extinguished at the end of a 10-year period. The Law Commission’s report has, however, never been acted upon.
The present case concerns the liability to repair the chancel of the parish church of the parish of Aston Cantlow and Wilmcote with Billesley in Warwickshire. The claimant is the parochial church council of that parish. The defendants, Mr and Mrs Wallbank, are the owners of land within that parish known as Glebe Farm, Aston Cantlow. That land includes a field known as Clanacre, which was allotted to Lord Brooke, who was then the lay impropriator of the parish of Aston Cantlow, by an inclosure award made in 1743 pursuant to the Aston Cantlow Inclosure Act 1742. The allotment was made in lieu of other rectorial property formerly belonging to Lord Brooke as lay impropriator. Mr and Mrs Wallbank are the successors in title to Lord Brooke. It is accepted that Clanacre became rectorial property as the result of the allotment to Lord Brooke, and that, by virtue of their acquisition of Clanacre, Mr and Mrs Wallbank have become lay impropriators of the parish. This is so even though they do not own the whole of the rectorial property, and there are doubtless other lay impropriators: see the second of the passages cited above from Halsbury’s Laws.
On 12 September 1994 the parochial church council served on Mrs Wallbank (who was then understood to be the sole owner of Glebe Farm) a notice, framed in accordance with the Chancel Repairs Act 1932, stating that the chancel of the parish church at Aston Cantlow was in disrepair and calling upon Mrs Wallbank to put it into proper repair. There had been considerable correspondence during the preceding few years in which Mrs Wallbank had disputed that she was liable to repair the chancel, and the parochial church council was probably not surprised that she did not comply with the notice. On 20 January 1995 the parochial church council began the present action against Mrs Wallbank in Stratford-upon-Avon County Court claiming, under section 2(2) of the 1932 Act, the sum required to put the chancel in proper repair, which was put at £95,260.84. For a time, Mrs Wallbank represented herself in the proceedings. Among other things, she pleaded that she was not liable to repair the chancel because there was a custom to the contrary in the parish and because the alleged liability to repair the chancel contravened the European Convention on Human Rights.
As the result of later procedural applications, Mr Wallbank was joined as a defendant in the action and the proceedings were transferred to the High Court. On 29 September 1999 Master Bragge made an order directing, among other things, that there should be a trial of the following preliminary issues:
(i) whether there is a custom in relation to the Chancel of the Church [of St John the Baptist Aston Cantlow] that it be repaired by and/or the cost of repairs be met by any individual individuals corporation or body whatsoever other than the Lay Rector for the time being; and
(ii) whether the liability of the Lay Rector to repair the Chancel of the Church or otherwise meet the cost of the said repairs by reason of the provisions of the Chancel Repairs Act 1932 and the common law is unenforceable by reason of the Human Rights Act 1998 or otherwise.
It is these preliminary issues that came before me for hearing.
The first issue is not expressed very clearly or grammatically, but I need not trouble about this because, at the outset of the hearing, Mr Ian Partridge, who appeared for Mr and Mrs Wallbank, accepted that there was no sufficient evidential material to enable the claim to a custom to succeed. It is therefore agreed that the answer to the first issue must be in the negative.
As to the second issue, Mr Partridge accepted that, the Human Rights Act 1998 not yet being in force, I could not, on any view, rule that it made the obligation to carry out chancel repairs unenforceable. Indeed, this might well not be an available remedy even if the Act were in force. But Mr Partridge contended, and Miss Sarah Asplin, on behalf of the parochial church council, did not dispute, that if I were to find that the English law on liability for chancel repairs is uncertain, I should, if possible, declare or develop it in a way that is consistent with the European Convention on Human Rights (the Convention): see Derbyshire County Council v Times Newspapers Ltd [1992] QB 770, particularly at p812. The argument for Mr and Mrs Wallbank therefore has two main elements, namely that: (1) English law is not yet settled in deciding that a lay rector is liable for chancel repairs, at any rate where the rectorial property owned by that lay rector consists of part only of a larger parcel of land allotted under an inclosure award in lieu of tithes or other rectorial property; and (2) it should be decided that such a lay rector is not liable, because to hold to the contrary would involve a contravention of one or more of the rights declared by the Convention.
(1) Is English law on this subject settled?
As to the first element, it is clear that until 1932 the obligation to repair the chancel, when it existed, was an obligation arising under ecclesiastical law, not civil law, and that failure to perform that obligation would, at least in the first instance, be redressable in the ecclesiastical courts, where the remedy was an admonition. Failure to act in accordance with an admonition might lead to other ecclesiastical penalties, such as excommunication. But it might also lead to proceedings for contempt of an inferior court brought in the court of King’s Bench. If contempt was proved, the court of King’s Bench could punish it in the same way as any other contempt, including the imprisonment of the contemnor.
Much of this is illustrated by Hauxton Parochial Church Council v Stevens [1929] P 240. In that case, Mr Stevens was the owner of land that had been allotted to his predecessor in title under an inclosure award in lieu of tithes and other payments due to the impropriators of the parish. He resisted a demand that he should pay for repairs to the chancel of the parish church, the cost of which was put at £30, on the ground that he had no notice of his liability to repair when he acquired his land. The chancellor of the diocese, whose decision is the subject of the report, found against him on the facts concerning the question of notice. But he went on to find that Mr Stevens would have been liable even if he did not have notice. The chancellor concluded at p244:
In these circumstances I have no alternative but to pronounce that Mr Stevens has herein offended against the law and that he be and hereby is admonished forthwith to put the chancel of Hauxton Church into proper repair and condition.
I was told by Mr Partridge that Mr Stevens was subsequently proceeded against for contempt, or threatened with proceedings for contempt. The report of the Wickhambrook case considered below indicates that this is indeed what happened: see [1935] 2 KB 417 at p422. Whether it be so or not, the Hauxton case seems to have led to the setting-up of a committee whose report resulted in parliament passing the Chancel Repairs Act 1932, which I have already referred to. By section 1 of that Act, no proceedings to enforce liability to repair a chancel were thereafter to be brought in any ecclesiastical court. Instead, any such proceedings were to be brought in accordance with the Act. The procedure laid down was that “the responsible authority” (usually the relevant parochial church council) was first to give notice requiring the repair to be carried out. If that notice was not complied with within one month, the responsible authority was entitled to bring proceedings in the county court to recover the sum required to put the chancel in repair. By section 2(3) it was provided:
In any proceedings brought as aforesaid, the court, if it finds that the defendant would, but for the provision of this Act, have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court… shall give judgment for the responsible authority for such sum as appears to the court to represent the cost of putting the chancel in proper repair…
The question that the court has to ask itself, therefore, is whether, before the 1932 Act came into effect, the ecclesiastical court could have admonished the defendant.
Quite soon after it was passed, the scope of the Act was considered in Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417. There proceedings were taken against one out of a number of lay impropriators entitled to tithe rentcharge, sometimes referred to as “the great tithe”. The full amount of this rentcharge was £120 pa and the defendant’s share of it was a little under £40 pa. The cost of the repairs was put at £123. The county court judge declined to make an order against the defendant on the ground that it had to be proved against the impropriator sought to be made liable that he had received tithes or other profits belonging to the rectory sufficient to cover the cost of repair. He held that, in the circumstances, the ecclesiastical court would not have admonished the defendant. The Master of the Rolls, Lord Hanworth, examined a number of texts on ecclesiastical law and authorities on liability for chancel repair and concluded (by reference to the questions posed in his judgment at p430 of the report) that: (i) there was a liability on the possessor of a part of the great tithe to repair the chancel; (ii) this liability was personal and several, not joint, and was not limited to the extent of the tithe owner’s receipts from the tithe; (iii) before the Act came into effect, the defendant would have been liable to be admonished by an ecclesiastical court; (iv) it was the question of liability to be admonished that had to be considered, not whether, in all the circumstances, it would have been fair to impose an admonition; and (v) the defendant was entitled to enforce contribution from the other tithe owners. Romer LJ gave a judgment to a similar effect. It was these judgments that Eve J described as producing a result that did not appear to be reasonable or just. Nevertheless, he acquiesced in them.
Wickhambrook was followed in Chivers & Sons Ltd v Air Ministry [1955] Ch 585. In that case, Queen’s College, Cambridge was, in 1833, the lay impropriator of the rectory of Oakington. In 1834, pursuant to an Inclosure Act passed in the preceding year, certain lands were allotted to the college in lieu of rectorial tithes and glebe land and rights of common belonging to the rectory. In 1924 the college sold part of these lands to Chivers. In June 1940 it sold another part to a second purchaser, and, in December 1940, it sold the remainder to the Air Ministry. In 1950 Chivers paid just over £80 for the repair of the chancel of the parish church. It then claimed a contribution from the Air Ministry, which resisted the claim on the ground that the college remained liable for the repair of the chancel as lay impropriator, notwithstanding that it had disposed of all its rectorial property. This defence was rejected by Wynn-Parry J, who made an order for contribution.
Mr Partridge accepted that the authorities show that a lay impropriator who has the whole of the rectorial property is, in the absence of a custom to the contrary, liable to repair the chancel of the parish church. But he submitted that they leave in doubt the question of whether a person who is entitled to only a part of the rectorial property is subject to the same liability. Alternatively, there is a doubt where the land in question represents part of property allotted under an inclosure award in lieu of rectorial property other than great tithe. These areas of doubt are sufficient, he submitted, to enable me to interpret or develop the common law consistently with the Convention, and, in doing so, to hold that persons in the position of Mr and Mrs Wallbank are not liable for chancel repairs.
I have to say that I am unable to discern this uncertainty in the common law. The Wickhambrook case itself was one where the defendant was not the owner of the entirety of the rectorial property, as was Chivers. It is true that in Wickhambrook the rectorial property in issue was part of the great tithe, whereas in the present case it is land awarded in substitution for glebe land. But it is difficult to see any ground for distinguishing the different types of rectorial property in this respect, and none emerges from the authorities. Moreover, in Chivers the property was land allotted in lieu of rectorial tithes and glebe land and rights of common belonging to the rectory. The more recent authorities do not, therefore, support Mr Partridge’s argument.
Mr Partridge sought to escape from these authorities by saying that Wickhambrook shows that what has to be considered is whether, if the law had not been changed by the 1932 Act, an ecclesiastical court would have had jurisdiction to admonish Mr and Mrs Wallbank at the time of the parochial church council’s demand in 1994. An ecclesiastical court, he said, would not have been bound by these decisions of the civil court. While I can accept that this is strictly the case, I do not think it justifies the conclusion that the outcome of the notional case in the ecclesiastical court would be in doubt or, to put it more accurately, that the ecclesiastical court would not have had jurisdiction to admonish Mr and Mrs Wallbank if the 1932 Act had not been passed. The detailed reasoning in the Wickhambrook case was directed, not towards the evolution of some new rule of the civil law, but to the ascertainment of the true effects of the canon law, so that the new jurisdiction conferred upon the civil courts by the 1932 Act could be exercised consistently with the old ecclesiastical law. Chivers followed Wickhambrook. I find it inconceivable that, if an ecclesiastical court had had to consider the matter in 1994, it would have regarded the Wickhambrook and Chivers cases as anything other than highly relevant and persuasive, even though not strictly binding. In any event, the decisions of the ecclesiastical courts themselves lend no support to the suggestion that those courts would have approached the matter differently, even if Wickhambrook and Chivers had not been decided. Thus, in Bishop of Ely v Gibbons (1833) 4 Hagg Ecc 156 a claim was made that the bishop was liable for chancel repairs as impropriator of a portion of great tithes of the parish of Clare, Suffolk. The claim was defeated on the ground that it was established that there was a custom of that parish that the rector was not liable for such repairs. While the case is not, therefore, authority for the proposition that the impropriator of part of the great tithe is liable for the repair of the chancel in the absence of such a custom, there was no suggestion that the bishop had any defence available to him other than the existence of the custom. Further, there is the Hauxton case, a decision of the ecclesiastical court, in which there was a positive decision that Stevens was liable for the repair of the chancel even though he was found to be “the impropriator of the impropriate rectory or a substantial part thereof” (emphasis added). Evidently, the chancellor of the diocese thought that it made no difference whether Stevens was the owner of the whole or only of a substantial part of the rectory.
Mr Partridge urged on me one further argument, at least in his written skeleton. This was that I should apply to the decisions in Wickhambrook and Chivers the dictum that is to be found in Pittalis v Grant [1989] QB 605* at p618G, where the Court of Appeal said:
[W]here it can see that the decision of the higher court has become obsolete, the lower court, if it is not to deny justice to the parties in the suit, is bound to say so and to act accordingly.
* Editor’s note: Also reported at [1989] 2 EGLR 90; [1989] 28 EG 126
Clearly, a principle of this kind is to be applied sparingly and with great caution. I do not doubt that the law relating to chancel repairs is capable of operating arbitrarily, harshly and unfairly. But I see no basis for saying that these characteristics represent a recent change in the way in which the law is perceived or that the law operated any less arbitrarily, harshly or unfairly in 1935 or in 1955, when Wickhambrook and Chivers respectively were decided. Moreover, this area of the law has been the subject of the Law Commission report published in 1985, which clearly regarded the liability for chancel repairs as part of the subsisting law. While the Commission recommended that the liability be abolished after a 10-year period had elapsed, no action has been taken to implement this. In all the circumstances, I see no scope for a decision that ignores Wickhambrook and Chivers.
I do not, therefore, find any basis for declaring the law to be otherwise than it appears to be on the authorities that I have mentioned, even if I were to consider that it infringes the Convention rights of Mr and Mrs Wallbank. I think, however, that it might be somewhat unsatisfactory if I left the matter there. As the question of infringement
(2) Would the defendants’ Convention rights be infringed if English law has the result for which the parochial church council contends?
The provisions of the Convention that, it was argued, would be infringed if the parochial church council’s claim is otherwise correct are:
(i) Article 1 of the First Protocol, relating to the protection of property;
(ii) Article 9 of the Convention, relating to freedom of thought, conscience and religion; and
(iii) Article 14 of the Convention, relating to the prohibition of discrimination.
I will consider these three articles in turn. For this purpose, I must assume that, looking only at non-Convention sources, I would (contrary to the conclusion that I have in fact reached) reach the conclusion that the law relating to the parochial church council’s claim is uncertain. In order to avoid repetition, I will refer to the law as contended for by the parochial church council as “the supposed rule”. In doing so, I do not, of course, intend to detract from my earlier decision, in which I have held that it represents the true law.
(i) Article 1 of the First Protocol
This article provides as follows:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The argument put forward on behalf of Mr and Mrs Wallbank was that the personal and several obligation to pay the cost of repairing the chancel that is contended for by the parochial church council represents a deprivation of possessions that is not done in the public interest and cannot be justified under the second paragraph of the article. Mr Partridge developed this argument by reference to the decision of the European Court of Human Rights (the ECHR) in James v United Kingdom (1986) 8 EHRR 123, which was the case in which the Duke of Westminster’s trustees attacked the Leasehold Reform Act 1967. The ECHR held that the Act did not contravene the Article because the deprivation of possessions that it involved was justified under the second paragraph. In doing so, it stated (at pp144-145 of the report) the general conditions that need to be satisfied in order to justify such a deprivation.
If the supposed rule would contravene Article 1, unless it could be justified under the second paragraph, the parochial church council’s case might well be difficult to sustain. But, in my judgment, the supposed rule involves no deprivation of possessions. The argument for Mr and Mrs Wallbank seems to assume that the starting point is that they are to be regarded as the owners of Glebe Farm free from incumbrances or other burdensome incidents attached to the ownership of the land. But this is not, in fact, correct if the supposed rule represents the law. The liability to repair the chancel is, on that basis, one of the incidents of ownership of that part of Glebe Farm that consists of land allotted under the inclosure award in lieu of tithe or other rectorial property. It is, of course, an unusual incident because it does not amount to a charge on the land, is not limited to the value of the land and imposes a personal liability on the owner of the land. But, in principle, I do not find it possible to distinguish it from the liability that would attach to the owner of land that is purchased subject to a mortgage, restrictive covenant or other incumbrance created by a predecessor in title. In such a case, the enforcement of the mortgage, restrictive covenant or other incumbrance involves no deprivation of possessions because the possessions in question were always liable to such enforcement. The case is quite different from that in which an outright owner of property finds that his ownership is entrenched upon by some outside intervention in the form of taxation, compulsory purchase or control over the way in which the property can be used.
(ii) Article 9 of the Convention
So far as material, Article 9 provides:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
There is a second paragraph to the article, but it was not suggested that this is material.
Approaching the matter without reference to authority, I have to say that I find it difficult to see how liability to repair the chancel arising under the ancient law that is applicable in this case affects Mr and Mrs Wallbank’s freedom of religion. They are at liberty to hold and practice whatever religious beliefs they may choose. Although it is not always possible to be sure about the existence of a liability for chancel repairs when land is acquired, and, on this trial of a preliminary issue, I do not have material before me from which to form a view of whether or not they were aware of this liability when they acquired their land, the fact remains that their liability is attributable to their own decision to acquire the land. It is, in this respect, different in character from liability to pay a tax imposed by some government agency, in respect of which the payers have no choice whatever. Moreover, if they were to dispose of the relevant part of their land, they would put an end to their liability in respect of future years. These factors are, I think, of some importance in examining the nature of the liability. For example, it is difficult to see how the tenant of leasehold property, of which the landlord is an ecclesiastical body such as the Church Commissioners, could argue that the liability to pay rent that will be used for church purposes affects his religious freedom. I find it difficult to draw a distinction of principle between this incident of leasehold property and the liability to repair the chancel, which is an incident of rectorial property.
Mr Partridge cited to me the case of Darby v Sweden A/187 (1991) EHRR 774*, in which the European Commission on Human Rights gave its decision on 9 May 1989. In that case, Dr Darby objected to payment of a Swedish municipal tax that included a tax fixed and imposed by the Church of Sweden, which received the proceeds of the tax. Because of his personal arrangements, under which he lived in Finland and worked in Sweden, Dr Darby was unable to benefit from an alleviation of the church tax applicable to those who were not members of the Church of Sweden. He claimed that his liability to pay the municipal tax, and, in particular, the church tax, was in breach of a number of his human rights, including his freedom of religion. The Commission upheld his objection. Having referred to an argument advanced by the Swedish government based upon the freedom of the state to collect taxes and to use them for purposes that an individual might object to, the Commission went on:
57. The situation is different where, as in the present case, the church is itself allowed to levy taxes. In such a situation the individual is obliged to contribute directly to the church and its religious activities. This distinction between general taxes and specific church taxes is not purely formal. For the individual concerned it may be of great significance.
58. In such cases, Article 9 para 1… requires that a State respects the religious convictions of those who do not belong to the church, for instance by making it possible for them to be exempted from the obligation to make contributions to the church for its religious activities.
* Editor’s note: Application No 11581/85
The Commission held by 10 votes to 3 that there had been a violation of Article 9.
When that case was considered by the ECHR, the court held that there had been a violation of Article 14 in conjunction with Article 1 of the First Protocol. In other words, it found that there had been unjustified discrimination against Dr Darby in his enjoyment of his
In all the circumstances, I do not think much assistance is to be gained from Darby. In particular, having regard to the differences between the tax that was under consideration in that case and the liability that is in question in the present case, I consider myself free to give effect to the view I said earlier that I would be disposed to in the absence of authority. Accordingly, I find that the supposed rule involves no contravention of Article 9.
Article 14
Article 14 provides as follows:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The article does not, therefore, provide a general free-standing right not to suffer discrimination. Rather, it has to be considered in conjunction with other Convention rights, the principle being that, in respect of those rights, which are protected by the Convention, there is to be no discrimination. The right invoked for this purpose on behalf of Mr and Mrs Wallbank is the right to peaceful enjoyment of possessions under Article 1 of the First Protocol.
In order to see whether there has been such discrimination, it is necessary to compare the position of those who are said to have been discriminated against, in this case Mr and Mrs Wallbank, with the position of members of an appropriate general class. Mr Partridge invited me to consider two such general classes, namely: (i) landowners generally; and (ii) owners of land forming part of a pre-reformation rectory. In relation to the first class, the liability to repair the chancel is unusual and comparatively rare, and Mr Partridge submitted that the fact that land was part of a pre-reformation rectory, or had been allotted in lieu of rectorial property, constitutes no objective justification for the difference in treatment of the members of this class. In relation to the second class, there are, he submitted, other differences in treatment that are not objectively justifiable. Thus, the recipients of vicarial tithes (as distinct from great tithe) were never liable to contribute to the repair of the chancel. Spiritual rectors, as distinct from lay impropriators, were relieved from liability to repair the chancel by section 2 of the Ecclesiastical Dilapidations Measure 1923. Those who acquired rectorial land from a spiritual rector, not a lay impropriator, were probably never liable for repairs. These cases are discussed in somewhat greater detail in paras 2.18-2.23 of the Law Commission’s report. There is also no repair liability in the case of those entitled to tithe rentcharge, which has been extinguished or otherwise dealt with under the Tithe Act 1936.
I do not go into greater detail in respect of the matters dealt with in the preceding paragraph for two reasons. First, it seems to me that if a comparison is to be made between the position of Mr and Mrs Wallbank and that of the members of some broader class, the appropriate broader class to take is the class of lay impropriators generally. If this is done, it does not appear to me that there is any discrimination involved. All members of the class are liable for chancel repairs. The fact that the actual cost of repair may differ from parish to parish is not, I think, discriminatory. If it is, the discrimination is, in my view, objectively justifiable because it depends upon the size and condition of the parish church of each ancient parish. Second, and more importantly, my conclusion that the supposed rule does not involve an entrenchment upon Mr and Mrs Wallbank’s enjoyment of their possessions, but is, instead, an incident that is part of the definition of what those possessions are, appears to me to exclude any notion that the supposed rule results in discrimination in the enjoyment of those possessions.
In the result, even if, contrary to my decision in the first part of this judgment, I thought that there was doubt about the scope of the supposed rule, I would not find it necessary to modify that rule in order to avoid a breach of the Convention.
In substance, therefore, I shall answer in the negative the question posed in the second of the preliminary issues that are before me. It seems to me, however, that this question has been posed in terms that would only be appropriate if the Human Rights Act 1998 were already in force. The arguments that were addressed to me recognised that this is not yet the case. It may be that a somewhat more cautious declaration would be appropriate in answer to this issue. On that matter, I shall welcome the assistance of counsel.
