The PCC and the incumbent of All Saints, Spring Park appealed under the Mission and Pastoral Measure 2011 to the Judicial Committee of the Privy Council against a scheme made by the Church Commissioners under the Measure. An episcopal visitation in 2016 had concluded that the parish was financially unviable, and the Commissioners made a scheme to dissolve it and divide its area between the two neighbouring parishes of St John and St George. The incumbent, the Rev’d Yvonne Clarke – the first black woman to be ordained deacon in the Church of England and one of the first women to be ordained priest – and the PCC had made written representations on the proposal, but the Bishop of Southwark had approved the scheme in June 2020.

The principal legal question before the Board was whether the Commissioners were a public authority for the purposes of the Human Rights Act 1998. In addition, the Commissioners raised a question as to whether the Board had jurisdiction to hear the appeal. The appellants argued, in brief, that the draft scheme, if made, would breach section 6 of the Human Rights Act 1998 by infringing Article 14 of the ECHR read with Articles 8 and/or 9; that the Bishop of Southwark and/or the Commissioners had breached the public sector equality duty under section 149(2) of the Equality Act 2010; and that the Commissioners had made a material error of judgement in failing to conclude that All Saints, as a UK minority ethnic-led church with a primarily UK minority ethnic congregation membership, provided an irreplaceable mission to UK minority ethnic people in the Spring Park/Shirley area. Further, it was argued that the Commissioners were a public authority under section 6 of the Human Rights Act and therefore bound by the public sector equality duty because they were a statutory corporation under the Church Commissioners Measure 1947; several public officeholders were members of the Commissioners ex officio; and they were required to lay an annual report and accounts before Parliament. It was also argued that they performed public functions, exercised statutory powers under the 2011 Measure and were democratically accountable to Parliament. They dealt with the Church’s property and addressed financial matters that were administrative rather than religious functions. The draft scheme had been within the ambit of Articles 8 and 9 of the ECHR, and the abolition of the parish was a breach of Article 14 by discriminating indirectly against minority ethnic people. The appeal was on the merits of the decision, and the Commissioners had not had adequate regard to the unique and successful mission of All Saints to the UK minority ethnic community and the discriminatory effect of the draft scheme on minority ethnic congregants and residents.

For the Commissioners, it was argued that they were not a public authority under section 6 of the Human Rights Act and, therefore, that neither they nor the Diocesan Mission and Pastoral Committee were subject to the public sector equality duty; further, they were not a body which was governmental in nature and did not fall within that definition. They were neither a ‘core’ public authority (all of whose functions were of a public nature) nor a ‘hybrid’ public authority, certain of whose functions were of a public nature. The role of a pastoral scheme was to make better provision for the cure of souls – and that was not a governmental function. In any event, the Commissioners had not acted in a discriminatory manner and neither they nor the Diocesan Mission and Pastoral Committee had failed to have due regard to the impact of the abolition of the parish on the UK minority ethnic population in the community.

The Board concluded that neither the PCC nor the incumbent had standing to pursue the appeal. The PCC had made timely representations concerning the initial proposal but its written representations about the draft scheme had been well out of time, while the incumbent’s notice of intention to appeal had been defective. However, although the appeal failed for lack of jurisdiction, ‘as a courtesy to the congregants who listened so patiently and courteously to the legal debate in the appeal’, the Board gave its views on the merits. It was satisfied that the Commissioners were neither a core public authority under section 6 of the Human Rights Act nor a hybrid public authority. Nor had the decision to make the scheme involved unlawful discrimination or any failure to take account of the needs of minority ethnic communities. Secondly, because the Commissioners were not a public authority, the public sector equality duty did not apply to them. Thirdly, the Commissioners had made a compelling case in support of the scheme, given the parish’s financial predicament and governance problems and the ability of the parishes of St John and St George to serve the community of Shirley, including the UK minority ethnic community. In short: ‘If it had had jurisdiction, the Board would not have allowed the appeal’. The appeal was dismissed.