Churchwardens & the Vacancy in the Benefice: Notes by the Hon Sir John Owen DCL LLM, lately Dean of the Arches, one of Her Majesty's Justices in the High Court, and a Churchwarden.
1. How does a vacancy come about?
A vacancy in benefice may occur through the death of the incumbent; by his resignation; by exchange (with consent of the respective patrons and Bishops); by cession (usually preferment/promotion); by deprivation; by compulsory retirement or by declaration of avoidance made by the Bishop after a serious breakdown in the pastoral relationship between the incumbent and the parishioners, caused by one or either or both over a substantial period.
2. What happens during a vacancy?
A. Churchwardens, together with the Rural Dean, become Sequestrators, i.e. trustees of the income and property of the benefice.
This happens automatically (C. of E. Miscellaneous Provisions Measure 1992). The Bishop may appoint one other person as an additional sequestrator if he considers this desirable. Under sequestration, the income of the parish church is ordered to be taken by the sequestrators and applied as required in the circumstances. Generally, nowadays the income received by the sequestrators is confined to marriage, burial and other fees, since, by virtue of the Endowments and Glebe Measure 1976 other income is paid directly to the diocese and an annuity or augmentation paid to each incumbent so long as he has the cure of souls. A vacancy brings these payments to an end until restored to the new incumbent.
Whenever a benefice is under sequestration, the Bishop has power to license a minister to be the priest-in-charge for so long as the sequestration continues. However, it is not usually considered necessary to license a priest-in-charge for the comparatively short interval which normally elapses between the vacation of a benefice by one incumbent and the admission of the next. Nevertheless, in recent years appointments of priests-in-charge have become much more common than formerly, partly because it sometimes takes time to find a suitable new incumbent owing to a shortage of clergy but principally because of the increasing exercise by diocesan Bishops of their power under section 67 of the Pastoral Measure  to suspend presentations to benefices. The exercise of this power will be appropriate when a pastoral scheme for reorganisation is in mind. Some other occasions will be harder to justify. In general, a priest-in-charge has the same duties as an incumbent, as regards the convening and chairing of meetings of parishioners (for the appointment of churchwardens), of parochial church meetings and of meetings of the PCC etc.
Only the Bishop may require a priest-in-charge to reside in the parsonage house.
The Bishop has power to determine the amount of remuneration to be paid out of diocesan funds for the performance of occasional ecclesiastical duties during a vacancy and where any such duty is performed by a person, other than a person in Holy Orders, the person to whom the remuneration is paid. If the Bishop makes such a determination it is binding on the sequestrators subject to the approval of the Bishop - who may have delegated to the Archdeacon – and the Sequestrators may, out of the income of the benefice, make provision for:
a. the proper care and custody of the house of residence of the benefice if any,
b. the upkeep of any garden, orchard or other land belonging to or occupied with such house of residence,
c .the remuneration payable in respect of any professional assistance.
D. A vacancy does not relieve Churchwardens of any duties or responsibilities.
Churchwardens, albeit first Parish Officers, are also Bishop’s Officers which entitles them to seek help from the Bishop and his staff, but more importantly, they remain representatives of the Parish as a whole. They continue to be required “to use their best endeavors by example and precept, to encourage the parishioners in the practice of the true religion” and to promote unity and peace among the parishioners.
They continue to have responsibility to ensure the necessary steps are taken when a Faculty is required.
Although the books belong to the P.C.C. and should be in the custody of the incumbent, the Churchwardens have custody of the Church Registers during a vacancy. This may well necessitate ascertaining the whereabouts of these books and taking physical possession of them. Leaving them in the church would probably be a breach of duty.
In the absence of an incumbent, it is likely that the responsibility for ensuring that visiting clergy are available for the church services held in the church will fall initially on the Churchwardens although both the P.C.C. and the diocese may well be involved. If the Churchwardens have difficulty they should seek help from the diocese although normally the Rural Dean, as a fellow sequestrator should be able to resolve difficulties. Churchwardens should ensure that visiting clergy sign the service book.
Churchwardens should ensure that the necessary arrangements are made with visiting clergy to provide for the choice of hymns etc.
Churchwardens should take custody of the Parson’s keys. Any separate church hall is likely to be the property of the P.C.C. and under its control although the building will probably be vested in the Diocesan Authority. If the incumbent has managed the hall as Chairman of the P.C.C., the Council will have to make arrangements. A hall or room integral with the Church is likely to be part of the freehold and during a vacancy will be under the control of the Churchwardens and not the council. The faculty authorising such use will make the position clear.
Although the freehold of the Church and churchyard is normally vested in the incumbent, possession of both is vested jointly in the incumbent and Churchwardens jointly. This fact requires the Churchwardens to prevent entry to the Church by any person claiming to enter for any purpose not authorised by law. A vacancy might suggest to burglars that there would be easy pickings in the Church.
If an incumbent dies and there is a parsonage house attached to the benefice, his widow may continue to reside in the house for two calendar months, presumably, the widower of an incumbent would have a similar right. The sequestrators will need to ensure that the parsonage house remains insured, especially if vacant.
Under Canon F15 it is the duty of Churchwardens to maintain order in the Church and Churchyard especially during Divine Worship. Although they may remove persons disturbing or clearly intending to disturb a service provided that they use no more force than is necessary it would be wiser, whether there is a vacancy or not, to seek help from the Police.
It may be that the annual meeting of parishioners (often still called the Vestry) and the annual parochial church meeting become due in a vacancy. In such circumstances, there being no Minister, the Churchwardens should convene the first meeting and sign the notice stating the date, time and place etc. (Churchwardens Measure 2001), and the Vice-Chairman or Secretary of the Council or some person authorised by the Council should sign the second notice. Although the Churchwardens and such person are required to make these arrangements, the Chairman of the Meeting will in each case be chosen by the meeting.
If, when a vacancy occurs, there is in the parish a licensed curate, he or she continues in office. Churchwardens should appreciate that for the curate, the vacancy may present new problems and will certainly involve a much-increased workload.
3. Selection of new incumbent
· When a benefice becomes vacant other than through the resignation of the incumbent, the Churchwardens must inform the Bishop and the Registered Patron.
· Patronage is the right to present to a benefice. Each diocesan registry should have a register of Patrons. All transfers should be recorded. In general terms the right to make a presentation occurs when a benefice becomes vacant, but before that can happen there are many procedural requirements.
Churchwardens should not be put off by this statement. They can obtain advice from the diocese and no doubt the Rural Dean will give guidance.
· When the Bishop becomes aware of a vacancy or an impending vacancy, he is to give notice of that fact to the designated officer of the diocese - very possibly the Diocesan Registrar will be that officer, or the Secretary of the Diocesan Pastoral Committee.
· The designated officer shall give notice of the vacancy to the secretary of the P.C.C. belonging to the benefice and to the registered Patron.
· If he wishes to exercise his rights – and he should - the Patron is required to act in accordance with the terms of the Patronage (Benefices) Measure 1986.
· Occasionally a Bishop or a designated officer has been known not to act in this matter as speedily as he should. This results in time consuming and unnecessary delay, which, in the light of the tight schedule which the 1986 Measure imposes, is to be avoided. The process of selection and presentation has to be completed within 9 months beginning with the date on which the benefice becomes vacant. Time can become a pressing consideration if the parish representatives or the Bishop exercise a veto or the Patron submits an appeal for review to the Archbishop of the province.
“Section 11 Meetings” of the Selection Process
Within 4 weeks of the secretary of the P.C.C. receiving notice of the vacancy the P.C.C. shall hold one or more meetings in order to:
a) prepare a statement (sometimes called a Section 11 Statement) describing the conditions, needs and traditions of the parish. Clergy seeking a benefice will no doubt decide whether they are still interested in the vacancy only after considering this statement, which should be regarded by the P.C.C. and the Churchwardens as of the utmost importance. The statement will need to include a collective view on whether or not the P.C.C. would accept a woman as incumbent or priest in charge of the benefice or as the minister who presides at or celebrates Holy Communion or pronounces absolution in the parish. The secretary must send a copy of this statement ‘as soon as practicable’ to the registered Patron and, unless the Bishop is the registered Patron, to the Bishop. If the P.C.C. would not accept a woman priest the P.C.C. should pass resolutions A&B from Priests (Ordination of Women) Measure 1993, failing which, neither of the P.C.C. representatives may reject solely on the grounds that the suggested incumbent is a woman;
b) appoint 2 lay members to the P.C.C. to act as representatives of the council in connection with the selection new incumbent. No doubt the Churchwardens may be the 2 representatives but there is no requirement that this should be so. It is important that the lay members, whilst not delegates, are to be representatives of the P.C.C. and not only of their own views;
c) decide whether to ask the Patron to advertise the vacancy. If so it would seem appropriate for the P.C.C. to offer to pay the cost. The two representatives would make known to the Patron the views of the P.C.C.. Either representative may do exercise a veto of any proposed candidate for the vacancy;
d) decide whether to request a joint meeting (i.e. a “Section 12 meeting”) with the Patron and the Bishop to exchange views on the Section 11 statement. The Bishop or the Patron may also request such a meeting, even if the P.C.C. makes no such request, but only if the request is made within 10 days of receiving a copy of the S11 statement. If requested, the meeting must be held within 6 weeks of the request. At least 14 days notice must be given of the time and place of the meeting;
e) decide whether to request from the Bishop a statement describing, in relation to the benefice, the needs of the diocese and the wider interest of the Church.
It is in the interests of all parties to build up and maintain trust and open relationships and mutual respect between the Bishop, Archdeacon, Rural Dean and Lay Chairman of the Deanery Synod, all of whom must be invited if there is to be a Section 12 meeting, the parish representatives and the Patron. Patrons are sometimes unknown to the Churchwardens and members of the P.C.C. and a Section 12 meeting may provide an opportunity to remedy this. Such a meeting may well be difficult especially as the P.C.C. will be without the guidance of their previous incumbent - neither he nor his spouse may attend such a meeting. It is common practice for the Rural Dean, Archdeacon, or even the suffragan Bishop to attend meetings (and they have no right to attend Section 11 meetings) assume the chair and, for good or ill, take over the proceedings. This is illegal at Section 11 meetings and at Section 12 meetings. When even the Bishop will be present at a Section 12 meeting, it is still for the whole body of persons present to choose a chairman. At ordinary P.C.C. meetings no one other than members of the council may attend unless invited by the council itself to do so; and then they may be invited only to speak but not to vote or preside. The P.C.C. and the lay Vice-Chairman should remember that it is their meeting and act with firmness and courtesy.
It is said that some parishes, having passed resolutions A & B under the Priests (Ordination of Women) Measure 1983, have nevertheless had pressure brought upon them to reverse those decisions. If those resolutions still represent the will of the P.C.C. it should stand firm against such pressure.
Where a candidate is turned down, requests for further advertisements again may suggest reimbursement of additional costs to the Patron; but in any event neither the P.C.C. nor the chosen representatives have any way of insisting that their views are accepted.
Even when the Patron has decided to whom he wishes to offer the benefice, he cannot make the offer without the approval of the Bishop and the P.C.C. representatives (the veto of one representative is sufficient to prevent the appointment). The Patron sends them a notice (Form 36 or 37) requesting their approval. If the Bishop wishes to refuse, he must do so by notice within 4 weeks from the date that the notice was sent. If the P.C.C. representatives or either of them wish to refuse, the notice of refusal must be sent within 2 weeks of the notice being sent. The representatives use form 37 and must give reasons for refusal. If the presenting Patron, within the time limits laid down, receives no communication, approval is deemed to have been given.
The Measure does not give any clear indication of the grounds on which a veto may be made. It is thought that even in the case of the Bishop they need not be such as would justify his refusal to institute the priest in question. It has been suggested that for example the Bishop or the P.C.C. representatives could withhold consent i.e. veto if the priest failed to meet some important requirement in the P.C.C. statement or the Bishop’s statement, particularly if the Bishop and the P.C.C. are agreed on that requirement. Another possible ground might be that the Bishop or the P.C.C. representatives feel that the priest’s personality makes him unsuitable for the parish and unlikely to be able to minister effectively in it. As already stated, unless a parish has passed resolutions A & B (see above) neither representative may reject solely on the grounds that the Patron’s presentee is a woman.
On receiving a refusal i.e. veto from either the Bishop or the parish representatives, the Patron may lodge a request to the Archbishop of the province to review the matter. The Archbishop is required to give his reasons for his decision in writing and to send copies to the Patron, the Diocesan Bishop and the P.C.C. Representatives. If the Archbishop authorizes the Patron to make an offer to the priest concerned he may do so.
It is comforting to know that little use has been made of this procedure. It seems that marital status cannot provide grounds for veto, which would be sustained on appeal to the Archbishop. Nor can race or age, although this last point may be of great importance to a P.C.C. as may marital status.
4. Presentation of new incumbent.
On receiving from a priest under the age of seventy an acceptance of an offer of the benefice, the Patron sends notice to the Bishop, presenting the priest to him for admission to the benefice and the end of the vacancy. Even at this stage difficulties may occur.
5. Admission is by institution.
A Bishop may refuse to institute i.e. refuse to admit to the cure of souls of a parish as the incumbent, a presentee in the following circumstances:
a) if there was a change of Patron in the year preceding the vacancy
b) if not more than 3 years have passed since the presentee was made deacon
c) if the presentee is unfit through physical or mental infirmity or incapacity, serious pecuniary embarrassment or scandal concerning his moral character.
d) if he has knowingly been a party to a transaction related to the presentation, which is invalid.
e) if the presentee has fewer than three years experience as a full time parochial minister.
Both the Patron and the presentee have a right of appeal against a Bishop’s refusal to institute. The appeal is to the Archbishop of the province sitting with the Dean of Arches or Auditor of the Chancery Court of York (the same person). There is no appeal from this tribunal. Objections by the Bishop at this stage are very unlikely to occur. However should a churchwarden for example have grounds for believing that the presentee is unfit as described in (c) above, he or she should inform the Bishop. Of a Bishop’s officer no less should be expected.
Before the incumbent is instituted notice of the Bishop’s intention to admit must be sent to the secretary of the PCC at least three weeks in advance and affixed to the church door, where it must remain for two weeks and the presentee must take the declaration of assent and take the oaths of allegiance and of canonical obedience. The churchwardens should ensure that the notice is displayed.
The incumbent is put into possession of the temporalities of the benefice by induction, which is performed by the Archdeacon on the Bishop’s mandate or sometimes by the Rural Dean as the Archdeacon’s deputy, and on his mandate. In practice, institution and induction take place at a service held at the parish church. Induction should always be after institution.
Subject only to the rights given in law to the Bishop and his officers, (e.g., the right of the Bishop in person to officiate or preach; the Faculty Jurisdiction of the Chancellor or Archdeacon; Visitation, &c.) once in possession of the benefice the incumbent has in it the exclusive duty of ministering and the exclusive rights to the emoluments of the benefice.
With presentation, institution and induction churchwardens may be tempted to sit back and let the new incumbent get on with it: This temptation should be resisted.
These notes were first published by the English Clergy Association, and are reproduced here with thanks. More useful information for Churchwardens and Private Patrons can be found on the Association's website at www.clergyassoc.co.uk