One of the law reforms I would like to see is finally to lift the burden of chancel repairs from the shoulders of home owners.
Of course, this reform would not relieve the Church Commissioners of their existing liabilities to parishes for chancel repairs, nor those of, for example, Oxford and Cambridge colleges, based on their receipt in 1936 of the compensation stock from the Government, on the extinguishment of tithe rentcharges by the Tithe Act 1936.
The extent of the Church Commissioners’ liabilities (and by extrapolation, the size of the whole problem) can be judged from the Church 2010 AGM Pastoral Committee report which can be found on http://www.churchofengland.org.
It is not enough that the Government has made chancel repair liability an “overriding interest” only until 12 October 2013. The generally accepted wisdom is that after that date it will only affect existing property owners who bought before 13 October 2013 or who buy after registration. Perhaps it is assumed that the Chancel Repairs Act 1932 will be amended before 13 October 2013 to state that owners whose registered title has priority over the chancel repair liability, will have a defence to any claim. But the Government has not expressed any willingness even to consider making any such change, or any change at all, to this legislation. Chancel repair liability does not, to my mind, fall within the definition of an interest in land, some right over or affecting land, in section 32 of the Land Registration Act 2002. This means registration is unnecessary, pointless and irrelevant. It should not be registered at all.
It is a shame that the Government refused to do anything about it when the Law Society made it clear in its Submission submission_ChancelRepairLiability 6 years ago that Solicitors generally felt the liability was an anachronism that caused unnecessary expense in conveyancing and no longer served any practical purpose.
We now know that the Church is actively looking for properties to register the liability against. A case in point is Broadway in Worcestershire, where the PCC has actually applied to register chancel repair liability notices against the titles of 30 people, who are alleged to own land which was allotted to the Earl of Coventry as lay rector under an enclosure award of 1771. They are all entitled to object and will be advised by their solicitors how to do so. The Bishop of Worcester and the PCC argue that all this is having a damaging effect on the mission of the Church, but they seem to have been intimidated by someone into thinking they have to register unless the Charity Commission agrees otherwise. This is really no business of the Charity Commissioner. I am pleased to hear that the Charity Commission is supporting the decision of the PCC of Broadway not to pursue its applications.
Mark Hill the well known ecclesiastical lawyer has argued in Church Autonomy in the United Kingdom by Mark Hill that the Church of England should have autonomy. However, privileges come with duties and one is surely to observe the human rights of parishioners.
Andreas Whittam Smith, the Church Commissioner, has stated publicly that the Church should be more hard-nosed in managing its investments, so abandoning the ethical investment principles which were defended by Lord Harries when he was the Bishop of Oxford. Harries v The Church Commissioners for England (1993)
It is also a shame that there has been no recent debate in the General Synod. Still the impression is given that the Church is not particularly interested in the effect the old ecclesiastical law still has on ordinary people who may not be church-goers, or what the preservation by neglect of outdated ecclesiastical law says to the public about the Church.
The General Synod of the Church of England debated this in 1982 and accepted the report of its standing committee, calling on the Government to phase out the liability over 20 years. This would have meant that property owners would not longer be liable for chancel repairs. Most of the liability passed to the parochial church councils in 1936, as the Government paid compensation to the Churches when it ended tithe rent-charge, under the Tithe Act 1936.
The remaining liability is an anomaly and an unnecessary complication to the conveyancing process for home buyers.
The standing committee report General Synod Standing Committee – Chancel Repair Liability – Report GS 515 is clear about the reasons why the Synod wanted Parliament to abolish the liability.
The debate on the report in the General Synod also makes interesting reading -Transcript of Proceedings of General Synod 18.2.1982.
It is the parish churches, rather than the Synod or Church Commissioners, that in theory might gain from the liability, but in practice hardly anyone in the parishes wants to know.
I have submitted a paper on this to the Ministry of Justice and the Law Commission. You can read an abridged version of it hereCHANCEL REPAIR LIABILITY LAW COMMISSION SUBMISSION 18.03.2011
Repeal of the Chancel Repairs Act 1932 would simplify conveyancing, and make the law fairer to everybody, including the churches.
Chancel repair liability is a complicated subject, as you can see from some of the case reports I have looked at:
Bishop of Ely v Gibbons
Walwyn v Awberry
Wise v Metcalf
Representative Body of the Church in Wales Case
Chivers v Air Ministry
Duke of Rutland v Bagshaw
PCC of Aston Cantlow v Wallbank:
Aston Cantlow PCC v Wallbank  Court of Appeal EWCA Civ 713
How our forebears tied themselves in knots over this ludicrous law!
The Law Commission has decided not to include chancel repair liability in its 11th review programme this year, but Lord McNally told me that he has referred my submission to his ministerial colleague Jonathan Djanogly MP in the Ministry of Justice. Mr Djanogly decided to leave the law unchanged. The Law Commission will only consider proposals for law reform if government ministers are at least willing to look at implementing its recommendations.
The Legal Advisory Commission of the Church of England has given advice to PCCsLegal Advisory Commission advice on chancelrepairliability that members of PCCs could become personally liable (presumably to the PCC itself) if they decide not to enforce the liability. But the PCC is independent of the Church of England’s central institutions and neither they or the Charity Commission can in reality interfere with a genuine decision of the incumbent and PCC made on the basis of Christian charity and good neighbourliness.
The Legal Advisory Commission itself recognised the serious pastoral difficulties which could result from a divisive legal case in which the Church took certain individual parishioners to court, who had no particular moral obligation to the Church.
A Westminster Hall Debate on Chancel Repair Liability 17.10.2012 debate on this subject took place on 17 October 2012 in Westminster Hall – the informal debating chamber of Parliament.
Any letters from campaigners on this subject should be addressed to Helen Grant MP, Ministry of Justice, 102 Petty France London SW1H 9AJ, or your MP. In the debate Helen Grant (the Under-Secetary of State who took over from Jonathan Djanogly) helpfully promised to keep this matter under review.
I have now written to Vince Cable MP who is the Secretary of State for Business Innovation and Skills, who responsibility for the Land Registry. Vince Cable 14.08.2012. He should now revoke the land registration provisions while the debate takes place on repealing the Chancel Repairs Act 1932. There may have to be a judicial review of the registration order. I have also sent a copy to the Archbishop of Canterbury.
I am pleased to report that my letter was referred by Dr Cable to the Land Registry Head Office, who considered the points I raised (though their role is not to campaign for law reform). In response I have drafted a new Land Registration (Transitional Provisions) Order Draft Statutory Instrument, which would, if signed by Dr Cable, immediately stop the registration process and allow the Land Registry to cancel the notices which have already been registered blighting people’s property titles. I have sent it to the Land Registry Head Office.
This would then enable Chancel Repair Liability to be forgotten about again and to take its proper place once more as a historical quirk of our law which is of no practical application, and allow time for a debate in Parliament on repealing the 1932 Chancel Repairs Act.
If you receive a letter from the Land Registry saying that the a Church PCC has applied to register a notice of chancel repair liability against your title, it is advisable for you to consult a solicitor or barrister immediately. There are in general objections that can be made to these applications. Nothing in my blog is to be contrued as legal advice.