UK: Regulation Of Cathedrals: The Proposal That Cathedrals Should Be Brought Within The Jurisdiction Of The Charity Commission

Last Updated: 18 June 2014
Article by George Duncan


Many readers of this bulletin will be aware that papers have been circulated by the Association of English Cathedrals dealing with a proposal that Anglican cathedrals should become charities within the Charities Act 2011, thus being required to register with the Charity Commission and coming within the jurisdiction of the Charity Commission. This proposal raises a number of interesting issues. Space does not allow consideration of all of these but we offer some comments.

The reason for the proposal

Anglican cathedrals are ecclesiastical corporations and thus wholly outside the framework of the Charities Act 2011. Although they are cathedrals as a matter of general law – and thus qualify for the tax exemptions applying to charities – they are wholly outside the jurisdiction of the Charity Commission.

Cathedrals are answerable to their visitors. They are also answerable, in some respects, to the Church Commissioners. Cathedrals are required to submit a copy of their annual report and audited accounts to the Church Commissioners, whose consent is required to certain disposals and acquisitions of land. The Church Commissioners have power to authorise the temporary "borrowing" from a cathedral's endowment to spend upon emergency repairs. However, the Church Commissioners have no general regulatory role. The Church of England Measures which govern Anglican cathedrals confer these rights upon the Church Commissioners without giving any detailed guidance as to the basis upon which the Church Commissioners are to exercise their powers. Thus, for example, it is not clear upon what grounds the Church Commissioners might refuse their consent to the acquisition or disposal of land. Nor do the Commissioners have any enforcement powers: for example, they do not have any sanctions at their disposal should a cathedral omit to send them a copy of its audited accounts.

As well as being a regulator, the Charity Commission has powers to give assistance and guidance to charities within its jurisdiction. It is often able to resolve a difficult situation by giving guidance to the trustees of a charity within its jurisdiction upon which they may safely act and has wide powers to authorise transactions which are expedient but which would otherwise be beyond the trustees' powers. However, the Church Commissioners have no corresponding powers in relation to cathedrals or to other ecclesiastical corporations. The Church Commissioners have an historical involvement with the finances of cathedrals, because their predecessors took over many of the endowments of cathedrals in the late 19th century, but they are not equipped to act as a regulator in the same way as the Charity Commission in relation to charities within its jurisdiction.

There would be a partial precedent for bringing Anglican cathedrals within the jurisdiction of the Charity Commission in the requirement that was quite recently introduced for larger parochial church councils to register with the Commission. PCCs were however in a different position because they were not ecclesiastical corporations and had always been charities within the meaning of the Charities Act, although in practice they had had little to do with the Commission until recently because they were excepted from the requirement to register.

Another parallel is that of Oxbridge colleges, which were only recently brought within the jurisdiction of the Commission.

Charitable trusts associated with cathedrals

Although the Charity Commission has no jurisdiction over the corporate property of Anglican cathedrals nor that of other ecclesiastical corporations, many cathedrals and other ecclesiastical corporations are responsible for the administration of funds held upon separate charitable trusts. These separate charitable funds are within the jurisdiction of the Charity Commission. This means that ecclesiastical corporations are subject to wholly distinct jurisdictions in respect of their corporate property and their associated charitable trust funds, even though in practice the two resources may be applied for identical purposes.

Cathedrals are also answerable to the Cathedrals Fabric Commission and to various other regulators in relation to specific aspects of their affairs, for example over health and safety issues.

Some issues raised by the proposals

The proposals have identified a definite gap in the current system: there is no body which can offer legally binding guidance to Anglican cathedrals in the way which the Charity Commission can to charities within its jurisdiction or authorise cathedrals to carry out otherwise unauthorised actions however expedient they are. Nevertheless, there are difficulties in the proposals.

The Charity Commission has very wide powers over registered charities. In extreme circumstances, it may intervene in the administration of a registered charity and even appoint new trustees. These do not seem appropriate powers for a secular regulator to have in relation to a church body.

Some of these difficulties already exist with the Commission's jurisdiction over PCCs. However, PCCs are in a different position. There is an inherent difficulty in the notion of a secular regulator evaluating the work which a cathedral or other ecclesiastical corporation carries out. As a last resort, if the Charity Commission feels that the trustees of a charity within its jurisdiction are not doing a good job then it can intervene and appoint new trustees who will do a better job. However, there seem huge difficulties in the notion of the Commission doing this in the case of a church!

Although the Charity Commission is equipped to act as a regulator of large and complex charities, its resources have been severely curtailed during recent years. In any case, the governing bodies of cathedrals should be less in need of regulation than an "average" body of charity trustees.

Subjecting Anglican cathedrals to regulation by the Charity Commission might lead to an overlap of responsibilities between the Charity Commission, the Church Commissioners and a cathedral's visitor. What would happen if two of these three approved a proposed course of action but the third did not?

The affairs of a cathedral or other ecclesiastical corporation are complex and specialised and would require specialised skills and knowledge on the part of a regulator.

If the Charity Commission became a regulator in respect of cathedrals then it might be expected to look closely at specific transactions which could raise complex issues in the case of a cathedral.

We think the general consensus is that there is a need at least for a general review of the current system but at the same time, the historic independence of cathedrals should be recognised should any changes be introduced. We await developments with interest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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