Minutes of previous Executive Committee meetings

Meetings of the Executive Committee cover a wide range of issues relating to charity law and practice. In order both to extend these reflections to a wider audience and to invite greater participation, this page contains summaries of the discussions at recent meetings. Members are invited to share insights, experiences and comments on any of them. We will endeavour to publish these and so create a more interactive debate on issues of interest and relevance to the members.

Please send contributions to the Editor, Simon Napper, by email to simon@alkemist.co.uk . Please label these with reference to the topic entry e.g. 1019.1

CONFERENCE OF SOLICITORS FOR CATHOLIC CHARITIES

Executive Committee

Summary of Minutes of Meeting held on 2 October 2019

Issues discussed:

1019.1 Enforceability of “Catholic Covenants” on disposal of property

There was a discussion around the restrictions that Catholic charities generally impose when selling property which seek to prevent the property from being used for activities involving abortion, euthanasia, in vitro fertilisation or experimentation on human embryos or for any organised religious activity, worship, teaching or propagation of teachings inimical to the Roman Catholic Faith.  

Last autumn, members had considered a query arising from a challenge to the wording of the covenants from the party to whom the affordable housing units section of a development site was to be transferred. Legal advice indicated that the clause breached the “protected characteristics” that the Equality Act seeks to guard.

Reference was made to the Supreme Court ruling on the “Cake Case” – Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland)  https://www.bailii.org/uk/cases/UKSC/2018/49.html

In response to comments that the restrictions are not always considered appropriate to domestic property sales, the charity involved (it provides assistance to women who might otherwise choose to have an abortion) had been insistent on the clauses being included when they sold a large residential property (suitable for conversion back to family use) which they had been using as a safe house for the beneficiaries of the charity. It had indicated that its experience was that properties of this sort could be used for ‘backstreet’ abortions. 

Pertinent to the imposition of the covenants could be, for example, former nursing homes where the outgoing charity would not want its name associated with activities that would breach the terms of the restrictions. 

Charities of other faiths are known to impose comparable restrictions – for example, when Anglican vicarages are sold, ‘The Old Vicarage’ is not generally allowed as a house name, while Methodist properties may be sold with restrictions on sales of alcohol and in respect of gambling.

All agreed that a chain of positive covenants was likely to be needed to secure any future imposition where the seller did not retain land in the vicinity capable of benefitting. On occasion, the Parish Church may have been mentioned as part of the benefitting land if sufficiently proximate, even if the seller was not the Diocese. 

Generally, the consensus was that for the most part, the restrictions are accepted. This is reassuring to know in the context of dealing with those fewer instances where the restriction is challenged.  

1019.2  Interactions between Dioceses and religious Orders

A member of the Exec Committee had been researching for an agreement to be entered into between a Diocese and an Order of Nuns in a Parish. A contemplative community had moved out and been replaced by a Congregation that was ostensibly enclosed but had an active minority who are ‘semi-enclosed’. He had been asked to a prepare a legal protocol/document explaining that they have some pastoral responsibility for the Parish. The Chaplain of the Community is a diocesan priest but he is not a Parish Priest. The chapel is attached to the convent but was previously the Parish Church and local Catholics still worship there. 

In the course of that research he had also come across an agreement between the Conference of Religious and Diocese – 

https://www.corew.org/news?offset=1557923109252   (scroll down to March2, 2019 news item) 

https://www.corew.org/news/2019/3/22/a-protocol-for-the-admission-of-religious-congregations-and-members-for-pastoral-ministry-in-england-and-wales

Another member noted that in Kenya there is a lot of concern about the vicarious liability issues that such arrangements can give rise to, particularly in light of safeguarding, the need for DBS checks, training and clearance and public liability issues. 

It was pointed out that canonically the Bishop is responsible for all that goes on in the Parish. 

One of the other issues might be the extent of public liability insurance which would be available for smaller religious orders or those in those circumstances. 

1019.3  Powers of Attorney and Wills

In Exec Committee members’ experience, most Orders require a Will to be made on final profession.

While accepting that in most cases a Lasting Power of Attorney for dealing with assets is probably, for most religious, not relevant, it was felt there should be consideration given to Health & Welfare LPAs or other forms of recording advance wishes or directives regarding medical treatment. GDPR issues may be raised unless there is a clear legal document giving someone (e.g. the Superior) the right to speak on the patient’s behalf.

1019.4  Qualified Surveyor Report

A discussion was held about whether a Charities Act Qualified Surveyor Report is necessary for release or modification of a restrictive covenant benefitting charity land. The consensus was that this did not amount to a ‘disposition of (an interest in) land’ so that a full QSR is not required but, nevertheless, bearing in mind that consideration may well need to be payable, prudent trustees ought to be obtaining advice from their surveyors on whether to release a covenant and if so, for how much, and on what other terms. 

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