All Saints Spring Park Parochial Church Council v Church Commissioners

Heard on 27 and 28 February 2024

This is an appeal by the Parochial Church Council (“the ASSP PCC”) of the parish of All Saints Spring Park (“ASSP”) and its incumbent, the Reverend Yvonne Clarke (“the Rev Yvonne Clarke”), against a decision of the Church Commissioners for England (“the Commissioners”) dated 28 September 2021 that the draft pastoral scheme involving the dissolution of the parish of ASSP in the Diocese of Southwark should proceed, notwithstanding the representations against it.

The principal legal question, which is a question of general public importance, raised in this appeal is whether the Commissioners are a public authority which is subject to the Human Rights Act 1998 (“the HRA”). The Board granted permission to appeal on 14 July 2022. But the Commissioners have belatedly raised a question as to whether the Board has jurisdiction to hear this appeal. Therefore, after setting out the background facts and the principal arguments advanced on the merits, the Board must consider the procedures which are set out in the Mission and Pastoral Measure 2011 (“the 2011 Measure”) in order to determine the jurisdictional challenge.

The draft pastoral scheme affects three contiguous parishes in Croydon: ASSP, St John Shirley and St George Shirley. The draft pastoral scheme would dissolve the benefice and parish of ASSP and divide the area of its parish between St John Shirley and St George Shirley. The church of ASSP would cease to be a parish church but would remain open for public worship as a chapel of ease. A consequence of the draft scheme would be that the incumbent of ASSP, the Rev Yvonne Clarke, who was the first black woman to be ordained as a deacon in the Church of England (the “Church”) and one of the first women to be ordained a priest, would be required to vacate her office.

Each of the churches in the three parishes is of the liberal Catholic tradition. The parishes are predominantly residential, with suburban detached and semi-detached houses and, in the parish of ASSP, a large housing estate built by Croydon London Borough Council called the Shrublands estate. Each of the parishes is demographically diverse, with the majority of the population being of white ethnicity, and (in 2021) the UK minority ethnic population of the parishes ranged from approximately 40% to approximately 44%. The Shrublands estate, with a population of about 3,000, had a higher ratio of UK minority ethnic people, namely 66 per cent. Each church has an ethnically diverse congregation, with ASSP having the highest proportion of UK minority ethnic members of its congregation.

The church at ASSP has since 2010 had the lowest attendance of the three churches by a considerable margin. 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. In that year it failed to pay for its gas supplies and as a result bailiffs visited the church premises, cut off the gas supply and removed the gas meters. In 2016 there was an episcopal visitation to the parish to enquire into the situation in the parish, review its finances and administration, and consider its strategy for future mission and development. By an Inhibition which was a part or consequence of the visitation, the Rev Yvonne Clarke was inhibited from carrying out her ministerial duties. The interim visitation report of February 2017 by the commissaries to the Bishop of Southwark concluded that the parish was not financially viable and was unable to meet its current debts. The report recorded failings to keep proper financial records and stated that neither the Rev Yvonne Clarke nor the parish officers had provided evidence of realistic ways in which the financial affairs and wider life of the parish could be turned around. The congregation was small with around 12 to 16 congregants and the buildings were in a state of disrepair.

The Rev Yvonne Clarke returned to her ministry in April 2017 after the Inhibition was lifted. An interim report by the Archdeacon of Croydon to the Bishop of Southwark on 16 December 2017 painted a similar picture of the parish to that of the visitation report and a final report by the Archdeacon of Croydon on 31 October 2018 stated that there was no evidence that the parish had the capacity to address the lack of financial viability and administrative capacity or to set sustainable financial and missional goals.

The Bishop of Croydon and the Archdeacon of Reigate, who was then also Assistant Archdeacon of Croydon, met the Rev Yvonne Clarke and two parish representatives on 21 January 2019 to discuss the financial viability and capacity of the parish for mission and pastoral care. In February 2019, the Archdeacon of Reigate drew up a paper entitled “The Future of the Church of England in Shirley” which described the lack of organisation and financial robustness in the parish and its inability to serve the parish in mission and contrasted that with the neighbouring parishes which had significantly larger congregations and were financially robust. Her paper was discussed at a meeting of the Croydon Archdeaconry Mission and Pastoral Committee (“AMPC”). Thereafter, the Archdeacon of Reigate met the PCCs of the three parishes between May and July 2019.

The Archdeacon of Reigate prepared a report for the meeting of the AMPC which took place on 4 September 2019 attended by the incumbent, at least one churchwarden and representatives of the PCC of each parish. The report set out five options ranging from maintaining the status quo, which would not address the viability of ASSP, to rearranging the parish boundaries so that there were two benefices and parishes in the Shirley area. The AMPC, having heard representations from the representatives of the parishes, unanimously supported the fifth option, involving the dissolution of the parish of ASSP and the division of the parish between St John's Shirley and St George's Shirley.

The Diocesan Mission and Pastoral Committee (“DMPC”), having received the AMPC's recommendation, met on 12 October 2019. The minutes of that meeting disclose that the DMPC considered the financial position of ASSP PCC, and the viability of the parish given the poor attendance at church each week, and recognised the fractious nature of the AMPC's recommendation, giving rise to the need for pastoral care for the congregation. The DMPC unanimously decided to initiate a statutory consultation on the AMPC's recommendation. On 8 January 2020, in accordance with section 6 of the 2011 Measure, the DMPC informed interested parties, including the Rev Yvonne Clarke and the ASSP PCC, that it was considering recommending a pastoral scheme to the Bishop of Southwark, the effect of which is described in para 3 above, and invited representations in response.

On 21 February 2020, Lee Bolton Monier-Williams, solicitors, acting on behalf of the Rev Yvonne Clarke and ASSP PCC made representations opposing the proposals. The representations contended that the parish offered a service to the local population, particularly the Rev Yvonne Clarke's spiritual leadership to the UK minority ethnic community and the parish's targeted mission to the Shrublands estate, which would be lost if it ceased to be a parish. The representations asserted that the proposed coupling with the other two parishes would not work well and expressed concern that the proposals would remove the Rev Yvonne Clarke from office.

The DMPC met on 27 February 2020. The ASSP PCC and the Rev Yvonne Clarke made both written and oral representations through their solicitor. The minutes of the meeting record the DMPC's decision. It was not persuaded by the representations that the ASSP PCC had the capacity to meet its financial obligations and considered that the mission to the Shrublands estate did not of itself justify the continuation of the parish bearing in mind the need to serve the remainder of the parish. The DMPC did not regard the ASSP PCC's proposed development plans as realistic both because of planning difficulties and because the ASSP PCC did not own the parsonage house and land.

The DMPC submitted the proposals to the Bishop of Southwark who approved them and who on 10 June 2020 submitted them to the Commissioners for the preparation of a draft scheme. The Commissioners considered whether the procedures in section 6 of the 2011 Measure governing the formulation and submission of the draft proposals had been followed and decided that they had. Having done so, they prepared a draft scheme as required by section 7 of the 2011 Measure.

On 21 July 2020 the Commissioners served a copy of the draft scheme on interested parties, including the Rev Yvonne Clarke and the ASSP PCC, and published a notice on the internet as required by section 9 of the 2011 Measure. The Commissioners gave notice that the deadline for submission of written representations on the draft scheme was midnight on 7 September 2020. No extension of that deadline was ever granted.

By that date the Commissioners had received 45 written representations against the draft scheme and 12 in favour. Among the representations opposing the draft scheme were representations from the Rev Yvonne Clarke and from her son, James Clarke, who...