BRIEFING ON THE CHANCEL REPAIRS BILL 2015
The abolition of
Chancel Repair Liability ('CRL') was proposed by the General
Synod of the Church of England in 1982. The
report of its Standing Committee under the Archbishop of
Runcie, was accepted by the Synod. Accordingly the Law Commission in 1985 duly reported
recommending the General Synod's decision, and the report was submitted to
Parliament. Unaccountably, Parliament then ignored the recommendations.
We now have the
opportunity to put this right.
By this Bill Parliament will enact the
proposal of the General Synod of the Church of England, and the Law
The Bill is likely to be scheduled for
a second reading shortly. 11 March is a possible date. It is in accordance with
Liberal Democrat principles as the preamble to our Constitution states we are
against all forms of entrenched privilege. The late Lord Avebury introduced the
Bill in the Lords last year. It will tidy up the law of property in England,
and simplify property transactions, by getting rid of the CRL attached to the
ownership of land.
Lord Avebury asked a question on this
subject in the Grand Committee on 15 January 2015, which Lord Ashton of Hyde,
answered on behalf of the Coalition Government. Lord Ashton of Hyde suggested
that CRL could not be abolished without the Government compensating PCCs for
the loss of a property right. Column
However Lord Avebury pointed out the generous support that the
Government already provides to Churches through schemes such as the Listed
Places of Worship Scheme (whereby VAT on church repairs is remitted).
The compensation stock which the Government provided for the
extinguishment of tithe rentcharges under the Tithe Act 1936, should also be
mentioned here, as it very largely
compensated the churches for the loss of a source of income for chancel
repairs. Tithes are no longer regarded
as a legitimate imposition, so neither should CRL be, derived from the system
of tithe. There is no legitimate expectation that CRL will never be abolished,
since abolition was proposed by the Church itself 34 years ago. Neither the
Synod nor the Law
Commission thought there should be any more compensation paid.
The right to receive payments in the future under legislation is not a
right protected by Article 1 of the 1st Protocol of the ECHR. James v UK shows that there is a margin of appreciation
under which it is recognised that national parliaments are entitled to reform
the law in the public Interest without always paying full compensation to anyone
affected by such reforms. There are,
therefore, strong arguments for saying that no more compensation is necessary
Lord Ashton also said that, since 13
October 2013 (when CRL ceased to be an overriding interest) it has been readily
discoverable by inspecting the register of title. This is not correct, as the
Land Registry continues to register notices of CRL by unilateral notice on
application made by the PCC. The Land Registry does not regard this as an
'alteration of the register'. This was made clear in the Land Registry's
'Alterations of the register' are
governed by section 65 and Schedule 4 of the Land Registration Act 2002.
Unilateral notices are registered under section 34; the Land Registry argues
therefore that Schedule 4 does not apply to the registration of a unilateral
notice, so the consent of the registered proprietor is not required, nor is it
necessary for the Church to produce evidence of the existence of the right, or
to prove that its claim has priority over the estate of the owner. It can be
argued that this is unfair. It is certainly contrary to the view of Lord Ashton
of Hyde, that the buyer of property now need not be concerned about the
possibility of unregistered claims to CRL.
It means that someone can purchase a
property after 12 October 2013 when there is no notice of CRL on the register
and then find that the Land Registry registers one unilaterally without his
consent. So that fact that CRL is no longer an overriding interest has made no
difference. Only by going to the First Tier Tribunal to argue the point, that
the right is not binding on his estate, can he get the notice cancelled.
Most people would consider this reform
to be in the general public interest. Parliament should also consider the human
rights of the property owners, whose titles are blighted by notices of CRL.
Three Lords Justices in the Court of Appeal in the Aston Cantlow case held that
CRL was an unfair tax and contrary to the human rights of the affected property
There is no specific statutory
authority for the Land Registry to register of notices of CRL. The right to
claim money from property owners is probably not in itself an interest in their
land. The Land Registry assumes it is.
The Law Society has expressed doubts on this.
The General Synod's 1982 decision in
principle, to support phasing out of CRL, has been ignored by the Archbishops' Council.
They supported the case of Aston Cantlow PCC against Andrew and Gail Wallbank,
mainly in order to establish that the Church of England is not a public
authority for the purposes of the Human Rights Act 1998, and so can claim
'victim status' if its human rights are infringed.
Law Lords they did not make any other
decision on the legal issues relating to CRL. They said that the law of CRL was
an anachronism and that it was for Parliament and not the courts to consider
reform. That is also the position of the Church. The General Secretary of the
General Synod (until recently William Fittall) consistently advised that this
is a matter for Parliament, and not the General Synod, to legislate on, and he
has never disputed the right of Parliament to reform the law in the public
Tithes were the ancient 'tenths' of the
cereal and other crops which the owners of titheable land had to hand over to
the Rector of each parish. They no longer exist, but back in Anglo Saxon times
tithe was accepted as a religious duty. An obligation of the Rector, attached
to the tithe, was to maintain the chancel of the Church. The tithes, and the
CRL liability on them, passed to lay rectors when the monasteries were
dissolved under Henry VIII.
The Tithe Act 1936 transferred almost
all CRL to Parochial Church Councils ('PCCs') when the Government issued
compensation stock, for the extinguishment of the tithe rentcharges. An amount
of stock estimated to cover the future cost of maintaining the Chancel was then
paid to the Diocesan Boards of Finance. However, no compensation stock was paid
in the case of land in which tithe rentcharges had merged (because the tithe
paying landowner and the tithe owner were the same person, and he remained
liable for CRL). That was an insignificant proportion of the whole, and made
very little difference to the amount of compensation stock issued. That
compensation stock was worth a huge amount of money, and it was paid for by
means of a Treasury levy, tithe redemption annuity, which was paid by farmers
and other owners of formerly tithed land, between 1936 and 1977.
An exception was made where the tithe
rentcharge owner was an institution such as the Dean and Chapter of a
Cathedral, the Church Commissioners or an Oxbridge College, whereby the
compensation stock was paid to that institution. They have been paying for CRL
ever since, and this Bill does not seek to abolish that form of liability.
Generally, where the tithe owner and
the tithe payer were the same person, the tithe merged in the land and the
liability was transferred from the tithe rentcharge to the land itself. This
was unfair as those former title owners remain liable when everyone else has
been released from liability by 1977 - though they did not have to pay tithe
redemption annuities, they could be made to pay for chancel repairs, even to
this day. CRL also exists where land was allotted to a lay rector in lieu of
tithe under an Inclosure Award. There is no statute confirming that Inclosure
Award liability still exists. The liability is solely based on supposed ancient
custom, and customs, like fashions, change over the years.
In the well known case of Aston Cantlow
PCC v Wallbank, the Law Lords decided only that the human rights argument put
forward by the Wallbanks did not hold water. The Wallbanks lived in the
Montgomeryshire constituency of Alex Carlile MP, now Lord Carlile of Berriew,
who referred their case to the Law Commission. Charles Harpum, a Law
Commissioner, wrote to him to say the Law Commission view was that abolition of
CRL would not infringe the human rights of the Church. There is no
protection under the ECHR for a statutory right to receive money, which
Parliament may decide to bring to an end.
The Bill only abolishes the liability
of property owners, great and small, who may unwittingly become liable when
they purchase a particular house or field.
The much resented levy of tithe was got
rid of in response to public pressure, long ago, in the same way as church
rates. In today's mainly secular society, when the right of the many religions
and religious denominations to equal treatment under the law is recognised, it
is an anomaly that CRL, a remnant of the system of tithes, still exists. No
religious group other than the Church of England has the right to sue property
owners for chancel repair costs.
The Bill is based on the one appended
to the Law Commission Report of 1985, which was made in response to the General
Synod, which voted unanimously in 1982 to phase out CRL.
The Bishop of Derby spoke, in the debate
in the Grand Committee on 15 January last year, of the need for yet more
compensation; but the Churches have had another 34 years, since the Synod took
its decision in favour of phasing out, to collect CRL payments from property
owners - yet it appears that very little indeed has been collected.
Lord Avebury only heard from a few
property owners who had been asked to pay to compound their liability. There
have been only two reported cases since 1936 when anyone has been sued for CRL.
But over 1,800 notices of CRL remain registered blighting property titles, for
no good reason.
Members of PCCs understand that it
would not go down well in the parish to make such claims, and so have mostly
let CRL go by default.
Baroness Wilcox mentioned in the Grand
Committee, the Land Registration Act 2002 was supposed to remove the
'conveyancing trap', by removing CRL's 'overriding' status; but the Land
Registry has not changed its procedure - it will register notices of CRL
unilaterally, without the agreement of the property owner, whenever it receives
an application from a PCC. The 2002 Act no longer provides any clear legal
justification for this procedure.
CRL is based on the custom, but the
Chancel Repairs Act 1932 transferred enforcement from the ecclesiastical courts
to the county courts. For the first time CRL was treated as a debt like any
other, rather than merely a customary payment, enforceable by the
ecclesiastical court's admonition.
No compensation was then paid to
property owners for the new debt liability imposed on them, and so it has not
been an invariable rule or convention that the Government pays compensation
whenever the law is changed in a way that affects a citizen's finances
(contrary to the suggestion of the Bishop of Derby). If that were so, the
administration of the nation's affairs would become impossible, and most of the
laws which Parliament passes, could not be passed.
3 March 2016