THE Church Commissioners didn’t discriminate unlawfully against the incumbent of All Saints’, Spring Park, Shirley, in Croydon, the Revd Yvonne Clarke, once they decided to dissolve the parish, the Privy Council has ruled.
The PCC of All Saints’, led by Ms Clarke, had appealed against the choice of the Commissioners’ Mission, Pastoral, and Church Property Committee to dissolve the parish, within the diocese of Southwark, and divide it between the parishes of St George’s, Shirley, and St John’s, Shirley (News, 5 February, Press 12 March).
Leigh Day, the law firm representing Ms Clarke, had argued that the draft reorganisation scheme was in breach of each the Human Rights Act 1998 and Equality Act 2010, and that the Commissioners had “made a cloth error of judgement” in deciding that the mission of the ethnically diverse congregation and community of All Saints’, led by a UK ethnic-minority priest, could possibly be replaced.
The Board of the Judicial Committee of the Privy Council unanimously dismissed the appeal in a judgment handed down on Tuesday morning. It was written by the Deputy President of the Supreme Court, Lord Hodge.
“The Board is satisfied that the choice to make the scheme didn’t involve illegal discrimination or any failure to take into consideration the needs of minority ethnic communities, including within the Shrublands estate,” it says.
Leigh Day had been granted permission to appeal against the Commissioners’ decision in July 2022. Two hearings had been held in February. Subsequently, nonetheless, an issue had been raised by the Commissioners about whether the Privy Council had jurisdiction to listen to the appeal.
The judgment, due to this fact, considers whether the Commissioners are a public authority subject to the Human Rights Act and Equality Act.
Leslie Thomas KC, for the appellants, argued that they were; Victoria Wakefield KC, for the Commissioners, argued that they weren’t, and that, “in any event, the Commissioners didn’t act in a discriminatory manner.”
The Board concludes that, under the procedures set out within the Mission and Pastoral Measure 2011, “it lacked jurisdiction to listen to the appeal, as each appellants would not have standing. If the Board had jurisdiction, it might have dismissed the appeal.”
Because of the dearth of jurisdiction, “anything which it says on the merits of the appeal cannot create a binding precedent. But, since the objection on the bottom of jurisdiction was raised so late and as a courtesy to the congregants who listened so patiently and courteously to the legal debate within the appeal, the Board records briefly its views on the merits of the appeal.”
THE Commissioners’ decision to dissolve the parish had been made after an episcopal visitation in 2016 concluded that the parish was not financially viable. A proposed pastoral reorganisation was subsequently instigated by the Bishop of Southwark, the Rt Revd Christopher Chessun, leading to a draft scheme.
Under this scheme, All Saints’ would remain open for public worship as a chapel of ease. A consequence of this, the judgment notes, could be that the incumbent, Ms Clarke, who was the primary black woman to be ordained as a deacon within the C of E, could be required to vacate her office.
The Shrublands estate, with a population of about 3000, has the next ratio of UK minority-ethnic people, the Board says, and every of the three churches has an ethnically diverse congregation. All Saints’ has the bottom attendance of the three.
“It has also suffered from significant financial difficulties. It has fallen into significant arrears in making its contribution towards diocesan costs; and its reserves, which stood at £173,000 in 2005, were exhausted by 2015.”
After the episcopal visitation, Ms Clarke was formally inhibited from carrying out her ministerial duties until 2017. An extra visitation and reports from the Archdeacon of Croydon “painted an analogous picture” and “stated that there was no evidence that the parish had the capability to handle the dearth of economic viability and administrative capability or to set sustainable financial and missional goals”.
In February 2019, the Archdeacon of Reigate wrote one other paper, “which described the dearth of organisation and financial robustness within the parish and its inability to serve the parish in mission”. A later report from the identical archdeacon set out five options for the parish, including its dissolution, for which the diocesan mission and pastoral committee (DMPC) voted unanimously in favour in autumn 2019.
By the time a draft of this plan had been accomplished by the Commissioners a 12 months later, “45 written representations against the draft scheme and 12 in favour” had been received, including from Ms Clarke and her son, James Clarke, who was the PCC secretary, the judgment says.
Further consultation took place, and representations were revamped the following 12 months; in September 2021, the Commissioners decided to maneuver forward with the draft scheme, unamended.
In its judgment, the Board considers whether the appellants had “due regard to the furtherance of the mission of the Church” under the 2011 Measure, which has, within the Established Church, the effect of an Act of Parliament.
The Board concludes that the Commissioners followed due process under the 2011 Measure in drafting the scheme.
It isn’t, nonetheless, satisfied that the PCC met the necessities of the 2011 Measure for an appeal to the Board. The “written expressions of view” made by solicitors on behalf of the PCC in 2020 weren’t “written representations with respect to the draft scheme”. Further representations made in November 2020 were beyond the September 2020 deadline set by the Commissioners, it concludes.
Representations made by Mr Clarke in September 2020 were throughout the time, but were “made in a private capability. Mr Clarke designated himself at the tip of the letter as ‘James Clarke, Son of Rev Yvonne Clarke’ and the text of the letter contained no suggestion that he was acting on behalf” of the PCC.
“As a result, the PCC doesn’t have standing to appeal to the Board under section 12 of the 2011 Measure because its written representations weren’t ‘duly made’.”
Even had the Board had jurisdiction, the Commissioners had not unlawfully discriminated, the judgment concludes. “The Board attaches weight to the role of the DMPC and the role of the bishop in considering the choices for the longer term of a parish and in approving a scheme. It also recognises the knowledge and expertise which the Commissioners bring to their role.”
The financial situation of the parish has not improved; so there’s “no change in circumstances” on which the Board has grounds to intervene.
The judgment concludes: “The Board is of the view that the Commissioners’ statement of reasons makes a compelling case in support of the scheme having regard to the financial predicament of and governance problems throughout the parish . . . and the power of the parishes of St John Shirley and St George Shirley with the help of a pioneer minister to serve the community of Shirley, including the UK minority ethnic community. If it had had jurisdiction, the Board wouldn’t have allowed the appeal.”
The Board dismisses the appeal, for want of jurisdiction. “In those circumstances, unless the parties submit otherwise inside 21 days of the difficulty of this judgment, the Board is minded that every party should bear its own costs on this appeal.”
A spokesperson for the Commissioners welcomed the choice. “The judgment will mean that, subject to an Order in Council, the diocese of Southwark can proceed with its proposed reorganisation within the Shirley area, to enable the Church to fulfill the needs of the varied community it serves.
“The Church Commissioners recognise this may come as a disappointment to the Revd Yvonne Clarke and need to acknowledge her ground-breaking contribution as the primary black woman ordained as a deacon within the C of E, and one in every of the primary female priests.”
