Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire (Appellants) v. Wallbank and another (Respondents)

A core public authority under section 6 of the Human Rights Act 1998 is governmental in nature. A non-governmental religious body does not acquire that status merely because it is established or regulated by law.

A person with some public functions is subject to section 6 only when performing a function of a public nature. No universal test applies. Relevant considerations include public funding, statutory powers, replacement of government and the provision of public services.

Enforcing chancel repair liability is a private act concerning an incident of land ownership, rather than a governmental function. In any event, enforcement neither violates property rights nor constitutes discriminatory taxation. Enforcement authorised by primary legislation also falls within section 6(2)(b).

The parochial church council served notices under section 2 of the Chancel Repairs Act 1932 requiring the owners of Glebe Farm, as lay rectors, to repair the chancel of the parish church. The owners admitted that, apart from the Human Rights Act 1998, they had no defence to liability.

Ferris J determined a preliminary issue against the owners and made a declaration of liability, with an inquiry into the repair costs. The Court of Appeal allowed their appeal in [2001] EWCA Civ 713, reported at [2002] Ch 51. It held that the council was a public authority and that enforcement violated article 1 of the First Protocol, alone or with article 14.

In Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank, the central questions were whether the council was a core or hybrid public authority, whether enforcement was a public function, and whether the owners' Convention rights were infringed.

1. Disposition. The House unanimously allowed the appeal and restored the order and determination of Ferris J.

2. Core public authority. All five Law Lords held that a parochial church council was not a core public authority under section 6 of the Human Rights Act 1998. Lord Nicholls, Lord Hope, Lord Hobhouse and Lord Rodger treated governmental character as the essential guide. The Church of England remained a religious organisation notwithstanding its establishment and legal links with the state. Its parochial councils promoted the Church's religious mission and were not established for public administration. Lord Scott agreed with the conclusion and adopted the reasons of Lord Hope and Lord Rodger.

   A body's statutory constitution, special powers or public-law status was not conclusive. Relevant considerations included public funding, democratic accountability, governmental substitution and the provision of public services. The body's capacity to qualify as a non-governmental organisation and enjoy Convention rights under article 34 was also material.

3. Hybrid authority and private act. Lord Nicholls, Lord Hope, Lord Hobhouse and Lord Rodger held that enforcement of chancel repair liability was not a public function. The council was enforcing a civil obligation attached to ownership of rectorial land. Public access to the church and the public interest in its repair did not convert enforcement into governmental action. Section 6(5) therefore excluded the act from section 6.

   Lord Scott disagreed on this issue. He regarded enforcement as a function of a public nature because the established parish church served parishioners, the council acted in their collective interest, and its charitable functions had a public character.

4. Property and discrimination. Lord Hope, Lord Hobhouse and Lord Scott held that, even on the assumption that the council was a public authority, enforcement did not violate article 1 of the First Protocol. The liability was an existing incident of land ownership, acquired with the land and capable of being avoided by disposing of it. It was neither an external deprivation nor taxation. The same Law Lords rejected the article 14 claim because owners subject to the liability could not compare themselves with landowners who owed no such obligation.

5. Primary legislation. Lord Nicholls, Lord Hobhouse and Lord Scott held that enforcement would in any event fall within section 6(2)(b), because the council was acting to give effect to the enforcement machinery in section 2 of the Chancel Repairs Act 1932. Lord Rodger expressly agreed with Lord Nicholls on this point.

6. Matters left unresolved. No authoritative ruling was made on retrospectivity because the issue was not argued. The correctness of the unlimited-liability rule in Wickhambrook Parochial Church Council v Croxford was also not decided. Lord Scott considered that question open in the House, while Lord Hobhouse expressly declined to endorse that observation.

1. House of Lords: The appeal was allowed unanimously. The decision of the Court of Appeal was reversed and the order and determination of Ferris J were restored: [2003] UKHL 37.

2. Court of Appeal: The owners' appeal was allowed. The court held that the parochial church council was a public authority and that enforcement was incompatible with article 1 of the First Protocol, alone or with article 14: [2001] EWCA Civ 713; [2002] Ch 51.

3. High Court: Ferris J determined the preliminary human-rights issue against the owners, declared them liable and directed an inquiry into the amount payable under the Chancel Repairs Act 1932.