Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank & Anor

This appeal concerned whether a parochial church council (PCC) is a "public authority" for the purposes of section 6 of the Human Rights Act 1998 when it enforces a lay rector's liability under the Chancel Repairs Act 1932, and whether enforcement infringed the right to peaceful enjoyment of possessions under Article 1 of Protocol 1 to the European Convention on Human Rights (A1P1) read alone or with Article 14. The House held that a PCC is not a "core" public authority for the purpose of section 6, and that, in relation to enforcing a lay-rector's civil liability to repair the chancel, section 6(5) applies so that the PCC was not a public authority in respect of that private act. The majority therefore concluded that the Human Rights Act did not render enforcement unlawful. The court also observed that the chancel repair liability is an incident of ownership of rectorial land under historic common law and, on the facts of the case, did not amount to a deprivation or disproportionate interference with property rights under A1P1. The Chancel Repairs Act 1932 and the Parochial Church Councils (Powers) Measure 1956 were central to the decision.

This case arose from proceedings by the Parochial Church Council (PCC) of Aston Cantlow to enforce a demand under the Chancel Repairs Act 1932 on Mr and Mrs Wallbank, owners of Glebe Farm, who were said to be lay rectors liable for repairs to the church chancel. The PCC served notices in 1994 and 1996 and proceedings were brought; Ferris J decided a preliminary issue in favour of the PCC. The Court of Appeal allowed an appeal, holding the PCC to be a public authority under section 6 of the Human Rights Act 1998 and that enforcement was incompatible with Article 1 of Protocol 1 (read alone or with Article 14).

On further appeal to the House of Lords the principal legal questions were:

• the retrospective application of the Human Rights Act to proceedings begun before the Act came fully into force (the parties had treated the Act as applicable and the point was not argued before the House);
• whether the PCC is a "public authority" under section 6(1) (and if not, whether it is a "hybrid" public authority under section 6(3)(b)); and
• whether enforcement of chancel repair liability by the PCC contravened A1P1 and/or Article 14.

The House concluded (majority) that a PCC is not a "core" public authority: the Church and its parochial bodies are essentially religious organisations, not governmental organisations, and the remedial scheme of the Human Rights Act should be read against Strasbourg jurisprudence distinguishing governmental bodies from non-governmental organisations. The nature of enforcing a lay-rector's civil liability — a private law incident attached to ownership of rectorial land — meant that section 6(5) applied: the act was private in nature and not caught by section 6(1). Several speeches added that even if the PCC were within section 6, either (a) enforcement did not amount to a breach of A1P1 in the concrete circumstances (no deprivation as the liability is an incident of ownership), or (b) the Human Rights Act contains saving provisions (section 6(2)(b)) which preserve the giving effect to primary legislation. The appeal was allowed and the order and declaration of Ferris J restored.

Appeal allowed. The House concluded that a parochial church council is not a "core" public authority for the purposes of section 6 of the Human Rights Act 1998 and, in respect of enforcing a lay-rector's liability for chancel repairs, the act was of a private nature so that section 6(5) applied. On the facts the enforcement did not amount to an unlawful interference with possessions under Article 1 of Protocol 1; alternatively, section 6(2)(b) preserves a public authority's act giving effect to primary legislation.

First-instance decision: Ferris J decided the preliminary issue for the PCC (judgment given 28 March 2000). Court of Appeal: allowed the defendants' appeal, holding the PCC to be a public authority and that enforcement was incompatible with Convention rights: [2001] EWCA Civ 713; [2002] Ch 51. House of Lords: appeal allowed, restoring Ferris J's order: [2003] UKHL 37.