The Palace in Kilkenny is the See House
for the Bishop of the Diocese of Cashel, Ossory, Waterford, Leighlin and
Lismore (“COWLL”) and the Diocese of Ferns.
The Palace is physically situate in the Diocese of COWLL. The Representative Church Body (“RCB”), in whom the property is vested, proposes to
transfer the Palace to the Heritage Council.
Chapter X Section 12 of the Constitution
of the Church of Ireland (“the Constitution”) governs transfers of this nature:
“The Representative Body shall be at
liberty to let on lease, or to sell either by public auction or by private
contract, any see lands, glebes or sites of churches or see or glebe houses,
with the buildings thereon, or any school-house vested in it, and the land
occupied therewith, which shall be hereafter found unsuited or unnecessary for
the Church of Ireland: Provided that no such sale or letting shall be made
without the consent of the diocesan council of the diocese in which such
property is situated; but it shall not be necessary for any purchaser to
inquire whether such consent has been obtained.” (Emphasis added.)
The diocesan councils of both the
Diocese of COWLL and the Diocese of Ferns voted on the proposed transfer. In COWLL the
result was 31 in favour and 11 against, while in Ferns it was 10 in
favour and 12 against. The combined
vote was 41 in favour and 23 against the transfer.
The situation is somewhat complicated by
the Statute of the General Synod passed to consolidate enactments in regard to
the Constitution. Section 2(1)(a) of
that Statute provides that, in the schedule thereto (ie in the Constitution):
“wherever the context so admits the word
“diocese” shall include any diocese or united diocese or united dioceses under
the jurisdiction of one bishop …”
There are three concepts here:
(a) a
diocese – eg the diocese of Ferns;
(b) a
united diocese – eg the diocese of COWLL, which was originally five separate
dioceses, and which now share a single diocesan synod and diocesan council;
(c) united
dioceses under the jurisdiction of one bishop – the Diocese of Ferns and the
Diocese of COWLL together constitute united dioceses under the jurisdiction of
one bishop, but they retain their own individual councils and synods.
The question is whether the context of
Chapter X Section 12 admits of the word “diocese” being read as “united
dioceses under the jurisdiction of one bishop”. It is the opinion of the Legal Advisory Committee that it does
not. The proviso refers to the
“diocesan council of the diocese in which such property is situated”. There is no such thing as the diocesan
council of the united dioceses of COWLL and Ferns – they each have their own
diocesan council. Therefore the section
does not appear to contemplate property situate in united dioceses. Although the Palace is the See House for one
bishop who is responsible for more than one diocese, it is situated in the
Diocese of COWLL.
The opinion
of the Legal Advisory Committee is that section 12 is satisfied by the diocesan
council of that diocese voting in favour of the proposed transfer of the
property.
The Legal Advisory Committee of the
Representative Church Body has considered the three questions raised by way of Motion passed at the General Synod held in
Belfast on 16th May 2000.
The questions as posed are whether:-
1. The episcopal constitution of the Church
necessitates that the Theological College and the Theological College Council
are accountable only to the bishops.
2. The episcopal constitution of the Church
precludes General Synod having any legislative or administrative power in
relation to the Theological College.
3. The Representative Church Body as trustee
owner holds title to the Church of Ireland Theological College for the House of
Bishops as beneficial owners.
The Legal Advisory Committee has grave
reservations about answering questions 1 and 2 as framed, since these questions
have been posed without reference to any well defined issue. If so posed to a Court, the Court would in
all probability decline to answer same.
However, in order to be as helpful as possible, the Legal Advisory
Committee expresses the following observations in relation to questions 1 and
2:-
1. It cannot be said unequivocally that the Episcopal constitution of the Church necessitates that the Theological College and the Theological College Council are accountable only to the Bishops in all circumstances. However, it should be noted that in order for the course as actually run by the Theological College in association with Trinity College, Dublin to qualify a person attending same for possible admission to holy orders, such course must, in accordance with Canon 21(3)(b) be one approved by the House of Bishops.
2. Equally, it
cannot be said unequivocally that the Episcopal constitution of the Church
precludes General Synod having any legislative or administrative power in
relation to the Theological College in any circumstances. Again however, it should be noted that in
order for the course as actually run by the Theological College in association
with Trinity College, Dublin to qualify a person attending same for possible
admission to holy orders, such course must, in accordance with Canon 21(3)(b)
be one approved by the House of Bishops.
In relation to question 3, the opinion
of the Legal Advisory Committee is as follows:-
The Representative Church Body does not
hold the Theological College on trust for the House
of Bishops as beneficial owners.
Rather, the property is held by the Representative Church Body on the trusts declared in a Deed of
Conveyance dated 29th August 1961 made between
the Adelaide Hospital Dublin and the Representative Body of the Church of
Ireland.
The declared trusts are set out in the
said deed as follows:-
“and
it is hereby declared that the Representative Church Body shall hold the premises
upon trust as and for the use of a Divinity Hostel or such other objects as the
Representative Church Body shall decide and subject to all such statutory rules
regulations and powers as are now or may hereafter be vested in the
Representative Church Body in respect of lands or premises vested in it.”