BREXIT

As foreshadowed in the previous report for February to May, in June the Conservatives concluded a ‘Confidence and Supply’ agreement with the Democratic Unionist Party in order to give them a small working majority in the Commons.Footnote ¹ The Queen duly delivered the Gracious Speech on 21 June, outlining the legislative programme for a Parliamentary session that, unusually, will run from 2017 to 2019. In July, the new Government published the European Union (Withdrawal) BillFootnote ² and in September it was given a second reading by 326 votes to 290 and committed to the Committee of the whole House for eight days of detailed debate.

Amid much media speculation, in August the Government published ‘Enforcement and dispute resolution’, its position paper on post-Brexit relations between the UK and the Court of Justice of the European Union.Footnote ³ It begins ‘In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice’ – which some critics claimed was a climb-down, arguing that the word ‘direct’ left room for the CJEU to continue to influence domestic jurisprudence. Subsequently at her speech in Florence on 22 September, the Prime Minister explained that what she wanted was for ‘the UK courts to be able to take into account the judgments of the European Court of Justice with a view to ensuring consistent interpretation’. Which looks very much like a continued – if arm's length – relationship.

CHARITY COMMISSION: CONSULTATION ON 2018 ANNUAL RETURN

On 1 September, the Charity Commission announced a consultation on the 2018 Annual Return.Footnote ⁴ The consultation is the second part of a two-year project reviewing the key information that the Commission collects from charities and displays on the Register, with the intention of moving to a format that is better targeted and easier to use. The consultation proposes adding some new questions and removing others; however, smaller charities with simple operating structures will have to answer fewer questions, while larger and more complex charities will have to answer more. The consultation was to close on 24 November.

CHARITY COMMISSION: UPDATED GUIDANCE FOR INDEPENDENT EXAMINERS

Also in September, the Charity Commission published updated guidance for independent examiners assessing charity accounts.Footnote ⁵ It includes three new obligatory directions: to check for any conflicts of interest that may prevent the examiner from carrying out the independent examination; to check that related-party transactions in SORP accounts are properly disclosed; and to check that the trustees have considered the charity's financial circumstances when preparing the accounts, and – for SORP accounts – that the trustees have made an assessment of the charity's position as a going concern.

The new requirements are mandatory for independent examiners’ reports signed and dated on or after 1 December 2017, in order to allow examiners time to familiarise themselves with the updated guidance.

CHARITY LAW: LAW COMMISSION REPORT

The Law Commission published its final report on technical issues in charity law, which makes a series of recommendations aimed at relieving charities of unnecessary bureaucracy while ensuring proper protections for the public.Footnote ⁶ For charities, recommendations include:

1. i. Giving them more flexibility to obtain tailored advice when they sell land, and removing unnecessary administrative burdens;

2. ii. Enabling them to amend their governing documents more easily, with Charity Commission oversight where appropriate;

3. iii. Increasing flexibility for charities to use permanent endowment, with checks to ensure its protection in the long term;

4. iv. Removing legal barriers to charity mergers; and

5. v. Giving trustees advance assurance that litigation costs in the Charity Tribunal can be paid from the charity's funds.

The report also recommends that the Charity Commission should have a single set of criteria on which to decide changes to a charity's purposes, increased powers to prevent charities using misleading names and the power to confirm that trustees were properly appointed.

DATA PROTECTION

The EU General Data Protection Regulation (GDPR) will come into force on 25 May 2018, before the UK leaves the EU, and compliance will be obligatory. The Queen's Speech in June included the announcement of a Data Protection Bill, which was duly introduced into the Lords on 13 September. The Bill includes provisions about the processing of personal data and states in the overview clause that most processing is subject to the GDPR. Part 2 of the Bill supplements the GDPR and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply.

In August, the Government published ‘The exchange and protection of personal data: a future partnership paper’, setting out its proposals for data protection after Brexit.Footnote ⁷ The position paper appears to accept that, even after Brexit, ‘UK businesses and public authorities may still be required to meet GDPR standards for their processing of EEA personal data following the date of withdrawal’.

ECCLESIASTICAL OFFICES (TERMS OF SERVICE) REGULATIONS 2009

The Church of England Document Library has published a composite text of the Ecclesiastical Offices (Terms of Service) Regulations 2009, as amended by the various Ecclesiastical Offices (Terms of Service) (Amendment) Regulations 2010 to 2017.Footnote ⁸ Deleted text is in strikeout and additional text is underlined. The composite text is for reference purposes only: it shows the amended text of the Regulations as they have had effect since 1 July 2017. The effect of the 2017 Regulations has been to change certain aspects of the provisions governing how clergy over the age of 70 hold office.

ECCLESIASTICAL JUDGES, LEGAL OFFICERS AND OTHERS (FEES) ORDER 2017

The Ecclesiastical Judges, Legal Officers and Others (Fees) Order 2017, made on 3 May, comes into effect on 1 January 2018.Footnote ⁹

LAW COMMISSION CONSULTATION ON WILLS

In July, the Law Commission published a consultation on proposals to make significant changes to the law governing the writing of wills.Footnote ¹⁰ It suggests that the current law is ‘unclear, outdated and could even be putting people off altogether’, noting that an estimated 40 per cent of adults die intestate. One issue of particular interest to readers of this Journal is the presumption, mentioned in paragraphs 7(39) and 7(40), that there is a relationship of influence – ‘not undue influence, as all that is being presumed here is that one party had the capacity to influence the other’ – where a gift is made ‘by a follower to a religious or spiritual adviser’. The consultation closed on 10 November.

PARISH MUSIC

The Legal Advisory Commission of the Church of England General Synod has published an opinion of February 2017 on ‘Parish music: organists and choirmasters and church musicians’, superseding the previous opinion under that title.Footnote ¹¹ Aside from the references to Canon B 20, it is probably of interest to any congregation that uses the services of church musicians, irrespective of denomination.

PLACES OF WORSHIP

Historic England (HE) has published a new guide, Metal Theft from Historic Buildings: prevention, response and recovery, intended for churchwardens, trustees, fabric officers, volunteers and owners who care for historic buildings, especially places of worship.Footnote ¹² It starts from the position that HE strongly encourages the use of appropriate and traditional materials for historic buildings, particularly on roofs, and that like-for-like replacement following theft is highly desirable, along with appropriate security measures to reduce the risk of a reoccurrence.

HE also published advice on its role in proposals to install telecommunications equipment in listed places of worship.Footnote ¹³ HE is the statutory adviser to local authorities and the five listed denominations in accordance with the Town and Country Planning Act 1990 and the Ecclesiastical Exemption Order 2010. Therefore, if an installation will make changes to historic fabric that could affect the character or significance of a listed building, HE must be consulted – whether a congregation is seeking permission through its denominational advisory body or through the local authority.

In July, ChurchCare published the Church Buildings Council's ‘Guidance note on ruined churches’.Footnote ¹⁴ Much of it is concerned with explaining the options available to dioceses and parishes for the management of ruins but it also includes a brief summary of the relevant law.

Finally, in September, the Church Buildings Council posted an announcement on the ChurchCare website to the effect that it had received written confirmation from the Heritage Minister, John Glen MP, that the Listed Places of Worship Grant Scheme would continue at its current levels until March 2020.