¹ Note the reflections of Lord Williams of Oystermouth in Williams, R, ‘Saving Our Order: Becket and the Law’ (2021) 23 Ecc LJ 127–139Google Scholar.

² See generally Griffith-Jones, R and Hill, M, Magna Carta, Religion and the Law of Law (Cambridge, 2015)CrossRefGoogle Scholar; and Helmholz, R, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004)Google Scholar.

³ Discussed more fully in M Hill, Ecclesiastical Law, 4th edn (Oxford, 2018), paras 1.19–1.21.

⁴ Who were to mutate into the United Kingdom's Supreme Court with effect from 1 October 2009.

⁵ Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546; [2003] 3 WLR 283; [2003] 3 All ER 1213, HL.

⁶ Ibid at para 23.

⁷ Chancel Repairs Act 1932, s 2(1).

⁸ Ibid s 2(2).

⁹ The legal test for the court is whether the lay rector would have been liable to be admonished, and not whether the ecclesiastical court would in fact have admonished him in the particular case: Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417, CA, at 440 per Romer LJ.

¹⁰ Ibid s 2(3).

¹¹ Aston Cantlow Parochial Church Council v Wallbank, The Times, 21 February 2007 per Lewison J, applying Wise v Metcalfe (1829) 10 B&C 299; and Pell v Addison (1860) 2 F& F 291, the latter using the expression ‘substantial repair without ornament’ at 292.

¹² Wickhambrook Parochial Church Council v Croxford [1935] 2 KB 417, CA. An individual held liable would have a right of contribution against co-rectors. See also Chivers & Sons Ltd v Air Ministry [1955] Ch 585, [1955] 2 All ER 607, Wynn-Parry J.

¹³ Wickhambrook Parochial Church Council v Croxford (above), per Romer LJ.

¹⁴ Ecclesiastical Dilapidations Measure 1923, s 52.

¹⁵ This was converted into a civil obligation in 1743 as a result of an enclosure award made under a Private Act of Parliament of 1742 entitled An Act for Dividing and Inclosing, Setting out and Allotting, certain Common Fields and Inclosures within the Manor and Parish of Aston Cantlow, in the County of Warwick.

¹⁶ The liability was not for not for a trivial sum. At the start of the proceedings, the estimated cost for the repair of the chancel exceeded £95,000.

¹⁷ ‘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’: European Convention on Human Rights, First Protocol, Article 1.

¹⁸ When the land came into the possession of Mrs Wallbanks’ parents in 1970, the conveyance stated it was ‘subject to the liability to repair the chancel of Aston Cantlow … so far as the same still affects the property conveyed and is still subsisting and capable of being enforced’.

¹⁹ Aston Cantlow v Wallbank (HL) at para 2.

²⁰ ‘Lay Rectors and Chancel Repairs’ (1984) 100 Law Quarterly Review 181.

²¹ For ease of reference, after the first full citation hereafter, the separate judgments will be designated (HC) for High Court, (CA) for Court of Appeal and (HL) for the House of Lords (now Supreme Court).

²² Aston Cantlow Parochial Church Council v Wallbank (2001) 81 P & CR 14, [2000] 2 EGLR 149 (Ferris J) (HC).

²³ Akin to a mortgage, restrictive covenant or other incumbrance. The land had always been subject to the liability, so the Wallbanks were not being deprived of anything.

²⁴ Wallbank v Aston Cantlow and Wilmcote with Billesley Parochial Church Council [2001] EWCA Civ 713 (CA), where it came before before Sir Andrew Morritt Vice-Chancellor, sitting with Robert Walker and Sedley LJJ.

²⁵ As the judgment stated: ‘the scene has shifted radically, and with it the locus of the argument’ (para 25).

²⁶ Human Rights Act 1998, s 6(1).

²⁷ Human Rights Act 1998, s 7(1).

²⁸ PCCs are the elected bodies responsible for parish churches (akin to vestries in the Episcopalian Church) and are not to be confused with parish councils, which, though also elected bodies, are the lowest tier of local civil government.

²⁹ CA, paras 28–35.

³⁰ Parochial Church Councils (Powers) Measure 1956.

³¹ CA, para 35.

³² The Law Lords had provisionally indicated that permission to appeal would be granted on condition that irrespective of the outcome of the appeal, the PCC would bear the legal costs of both parties at first instance, in the Court of Appeal and in the House of Lords. The reasoning of the Appeal Committee (Lord Hutton, Lord Hobhouse of Woodborough and Lord Millett) was that the Church Commissioners were wealthy and the Wallbanks were not. It was emphasised by counsel at the permission hearing on 11 February 2002, that the PCC was a separate legal entity from the Church Commissioners. It was further pointed out that the Church Commissioners are themselves lay rectors for many parishes, and may have a financial interest in the appeal failing. Leave to appeal was granted unconditionally, upon the PCC undertaking, if successful, not to pursue its costs in the House of Lords.

³³ HL, para 61 per Lord Hope of Craighead.

³⁴ HL, para 84 per Lord Hobhouse of Woodborough.

³⁵ Interestingly, at the time of writing, the role of the Church of England as both a provider of education and marriage facility is subject to increasing criticism.

³⁶ HL, para 13.

³⁷ CA, para 32.

³⁸ HL, para 154.

³⁹ Lord Hope noted, at para 36, that the Court of Appeal ‘had been invited to enter into largely uncharted territory’ and that in revisiting the matter, the Law Lords had the benefit of criticisms which had been made of its decision, notably, D Oliver, ‘Chancel Repairs and the Human Rights Act’ (2001) Public Law 651.

⁴⁰ HL, para 6. The Court of Appeal declined to look to Hansard for assistance in construing the term and Lord Hope considered it correct to do so (para 37). There was no ambiguity so as to bring the issue of statutory interpretation within the limited exception described in Pepper v Hart [1993] AC 593.

⁴¹ HL, para 6. See Oliver, D, ‘The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act 1998’ (2000) Public Law 476Google Scholar.

⁴² Lord Nicholls noted the victim paradox, discussed below, and observed that the fact that a core public authority is incapable of having Convention rights of its own, is a matter to be borne in mind when considering whether or not a particular body is a core public authority. It must always be relevant to consider whether Parliament can have intended that the body in question should have no Convention rights (para 8).

⁴³ HL, paras 48–51: in particular Holy Monasteries v Greece (1995) 20 EHRR 1; and Hautanemi v Sweden (1996) 22 EHRR CD 156. He also noted that while the two main churches in Germany (Roman Catholic and Lutheran) have public legal personality and are public authorities bound by the provisions of article 19(4) of the German Constitution (Grundgesetz) or Basic Law which guarantees recourse to the court should any person's basic rights be violated by public authority, they are in general considered to be ‘non-governmental organisations’ within the meaning of article 34 of the Convention. As such, they are entitled to avail themselves of, for example, the right to protection of property under article 1 of the First Protocol: Frowein and Peukert, Kommentar zur Europäishen Menschenrechtskonvention, 2nd edn (1996), art 25, para 16.

⁴⁴ Lord Hope at para 35 adopted the alternative term ‘standard’ public authority, borrowing from Clayton and Tomlinson, The Law of Human Rights (Oxford, 2000), vol 1, para 5.08.

⁴⁵ Or ‘functional’ as used by Lord Hope, again borrowing from Clayton and Tomlinson.

⁴⁶ Human Rights Act 1998, s 6(3)(b).

⁴⁷ Human Rights Act 1998, s 6(5). The distinction between public and private acts has a bearing on whether a hybrid public authority may be a victim entitled to bring proceedings under the Act: see below.

⁴⁸ HL, para 13.

⁴⁹ HL, para 14.

⁵⁰ HL, para 58, citing M Hill, Ecclesiastical Law, 2nd edn (Oxford, 2001), 48 and 74, paras 3.11 and 3.74.

⁵¹ Parochial Church Councils (Powers) Measure 1956, s 3. PCCs were introduced by its statutory forerunner, the Parochial Church Councils (Powers) Measure 1921. Strictly this Measure conferred powers onto PCCs already constituted under the Schedule to the Church of England (Powers) Act 1919. Lord Rodger considered this important: PCCs were created by the Church to carry out functions to be determined by the Church (paras 151–152).

⁵² HL, para 58, citing Chancel Repairs Act 1932, s 2.

⁵³ HL, para 59.

⁵⁴ HL, para 63. Lord Scott of Foscote agreed with him, and with Lord Rodger of Earlsferry (para 129).

⁵⁵ HL, para 86. ‘The fact that the Church of England is the established church of England may mean that various bodies within that Church may as a result perform public functions. But it does not follow that PCCs themselves perform any such functions.’

⁵⁶ HL, para 156.

⁵⁷ HL, para 16.

⁵⁸ HL, para 63.

⁵⁹ HL, para 90.

⁶⁰ HL, para 130.

⁶¹ HL, paras 133–135.

⁶² HL, para 8. Under Article 34 of the European Convention on Human Rights, the status of victim (a pre-requisite for bringing a claim for relief in Strasbourg) is defined as: ‘any person, non-governmental organisation or group of individuals’ (emphasis added). Lord Hope deals with the matter at paras 45–48, emphasising at para 52 the significance of the jurisprudence of Strasbourg as to ‘those bodies which engage the responsibility of the State for the purposes of the Convention’.

⁶³ HL, para 8. The Convention description of a victim (above) is incorporated into the Human Rights Act, by section 7(7).

⁶⁴ The associational nature of the right is clear from the fact it is to be enjoyed: ‘either alone or in community with others’.

⁶⁵ For a trenchant discussion of judicial disregard of section 13, see S Lee, ‘The cardinal rule of religion and the rule of law: a musing on Magna Carta’ in R Griffith-Jones and M Hill (eds), Magna Carta, Religion and the Rule of Law (Cambridge, 2015), 314–333.

⁶⁶ Land Registration Act 1925, s 70(1)(c).

⁶⁷ Land Registration Act 2002 (Transitional Provisions) (No. 2) Order 2003, SI 2003/2431: see M Hill, Ecclesiastical Law, 4th edn (Oxford, 2018), para 3.46.

⁶⁸ Land Registration Act 2002 (Transitional Provisions) (No. 2) (Order) 2003, SI 2003/2431.

⁶⁹ Land Registration Act 2002, sch 1 para 16, and sch 3 para 16.

⁷⁰ Ibid, ss 11(4)(a), 12(2)(b); and 29(2)(a)(i), 30(2)(a)(i).

⁷¹ The conveyancing trap of purchasing property with a potential substantial liability no longer applies, and recourse to insurance has ceased to be necessary.

⁷² See Nugee, E, ‘The Consequences of Aston Cantlow’ (2004) 7 Ecc LJ 452–461Google Scholar.

⁷³ See <https://www.churchofengland.org/sites/default/files/2017-12/chancel-repair-liability.pdf>, accessed 1 October 2023.

⁷⁴ Formerly section 29 of the Charities Act 1993. In my experience, the Commission was more inclined to offer favourable advice under section 29 when registration was a procedural nightmare than where one lay rector was identifiable but there were pastoral reasons for not registering against that person's land.

⁷⁵ Baiai (and others) v The Secretary of State for the Home Department and others [2008] UKHL 53.

⁷⁶ Ibid, para 37.

⁷⁷ Civil Partnership Act 2004, creating a legal union for same-sex couples, subsequently extended to opposite-sex couples in consequence of a decision of the Supreme Court: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development [2017] UKSC 32.

⁷⁸ Marriage (Same Sex Couples) Act 2013.

⁷⁹ House of Bishops’ Pastoral Guidance on Same Sex Marriage (15 February 2014).

⁸⁰ See the Living in Love and Faith project: <https://www.churchofengland.org/resources/living-love-and-faith>, accessed 1 October 2023.

⁸¹ GS Misc 1339, 25 January 2023, para 3.

⁸² The voting figures were decisive, but did not reach the two-thirds majority that would have been required had the proposal amounted to a change of doctrine.

⁸³ The deference owed to the Queen following her seventy years of devoted service as monarch and Supreme Governor had provided a powerful restraint on disestablishment. Her words, spoken on her 21st birthday in 1947, speak volumes: ‘I declare before you all that my whole life whether it be long or short shall be devoted to your service and the service of our great imperial family to which we all belong’. I predicted that public deference and restraint might well die with her, and so it seems to have done.

⁸⁴ See the papers delivered at the Ecclesiastical Law Society Conference, March 2018, Church and State in the Post-Elizabethan Age: Podmore, C, ‘Self-Government Without Disestablishment: From the Enabling Act to the General Synod’ (2019) 21 Ecc LJ 312Google Scholar; Brown, M, ‘Establishment: Some Theological Considerations’ (2019) 21 Ecc LJ 329Google Scholar; and Fittall, W, ‘The Practice and Politics of Establishment’ (2022) 24 Ecc LJ 332Google Scholar.

⁸⁵ See Rivers, J, ‘The Secularisation of the British Constitution’ (2012) 14 Ecc LJ 371–399Google Scholar.

⁸⁶ Johnson v London Borough of Havering and Others [2007] 2 WLR 1097, at para 39.

⁸⁷ The opening shot of the skirmish came on 6 July 2023 in the form of general debate in Westminster Hall on bishops in the House of Lords confected by humanist Tommy Sheppard MP (SNP).

⁸⁸ For a thoughtful discussion, see Chaplin, J, Beyond Establishment: Resetting Church State Relations in England (London, 2022)Google Scholar.

⁸⁹ See Hill, M, ‘Change and Decay – the Twilight Years of an Established Church: 1994‒2023’ in Doe, N (ed), The Legal History of the Church of England (Oxford, 2024), 213–232CrossRefGoogle Scholar.