Shortage of burial space? Surprise, surprise!

Following a survey of local authorities in England, the BBC suggested that Burial space in England ‘could run out in 20 years’. BBC Local Radio had approached 699 local authorities, 358 of which responded and it was reported that of these, 25% said that they would have no burial space in 10 years’ time, and 44% indicated that they could only accommodate burials for the next 20 years.  A full list of the responses is given in the report, here for parish town councils and here for unitary authorities.  The results indicated that areas such as Tandridge district council in the South East, which has already run out of space, and Bicester which is due to experience problems as it doubles in size over the next 10 years with the development of 12,000 houses.

Ardington 02Dr Julie Rugg of the Cemetery Research Group at the University of York’s agreed that the situation was “desperate” and called on the government to intervene, stating that the findings of the survey suggested “for the first time how desperate the problem is right across the country”, not just in London or the larger towns.  She is quoted as saying “I don’t know how much more evidence there needs to be on the table before the Ministry of Justice appreciates that this is a crisis.”


The Church of England controlled most of the burial grounds until the early 19th century, when statutory legislation was introduced to permit private firms and burial boards to develop new sites to meet the growing demand for space.  However, the authors of the report “Cemeteries and their management” undertaken for the Ministry of Justice in 2004, suggest that local authority and privately-run cemeteries have traditionally been operated on a non-sustainable model, relying upon the income from current burial to fund the maintenance of their assets, including the closed cemeteries that generate no income.

Successive governments have been aware of the problem, but have been unwilling to take action on this sensitive issue and its solution through the reuse of graves [1] a debate that dates back to 1994.  In 2001, a report of the Environment, Transport and Regional Affairs Select Committee noted, [para. 127],

“is the almost universal view of those in the burial industry that reuse is the only long-term solution not only to the lack of burial space, but also to the long-term financial viability of cemeteries. If the public are to continue to have access to affordable, accessible burial in cemeteries fit for the needs of the bereaved, there appears to be no alternative to grave reuse. … For the reasons stated above, and assuming that the necessary safeguards are included, we are ourselves of the opinion that legislation should be introduced allowing burial to take place in reused graves.”

and concluded, [para. 129]

“ . . . . we were taken aback by the sheer magnitude of the problems facing our cemeteries.  The almost complete failure on the part of public authorities to take the action necessary to address those problems – from the Home Office’s decision not to issue the consultation paper on the reuse of graves to local authorities’ refusal to treat this essential service with the seriousness which it deserves – is inexcusable. We trust that, now Ministerial minds have been focussed on the subject of cemetery services, this situation will begin to change.”

Surveys were undertaken in 2004 [2] and 2007 [3], and a consultation in 2004 [4],STE_2420(2) but in view of the sensitive nature of the solution, and agreement on the re-use of graves was reached  ‘in principle’ in 2007 [5].  Although the religious beliefs of Jews and Moslems discourage the disturbance of remains and favour one burial per plot, these and the Commonwealth War Graves Commission, who also have strong objections, represent only a small fraction of the total burials.  Although the majority of respondees to the Home Office/DCA Consultation on the re-use of graves were in favour of such action, ‘a substantial minority’ indicated a strong aversion, especially those from the ‘general public’.

The HC Library Standard Note,Reuse of Graves“, published in 2012, catalogues the developments over the previous 11 years and suggests that little is likely to change.  In the concluding section “What does the present [Coalition] Government intend to do?” are the following ministerial exchanges:

Burial Law


Asked by Lord Clement-Jones

To ask Her Majesty’s Government whether they have considered any reform of burial law in order to permit reuse of old graves for burial and to ease the financial burdens placed on local authorities in administering public cemeteries.[HL4645]

The Minister of State, Ministry of Justice (Lord McNally): We are currently considering whether to permit the reuse of old graves as a solution to the shortage of burial space in some areas. We recognise that such arrangements could relieve local authorities from the costs of acquiring and developing new land for burials. Authorities in London are already permitted, under provisions within the London Local Authorities Act 2007, to reuse old private graves.

3 Dec 2010 : Column WA491



Lyn Brown: To ask the Secretary of State for Justice how his Department assesses demand for burial space in burial grounds. [117496]

Mr Djanogly: A survey of burial grounds conducted in 2005 concluded that there would be a median remaining lifetime of 30 years (i.e. until 2035) for existing burial grounds if current levels of demand continue. The issue of burial space is routinely discussed at bi-annual meetings of the Burial and Cremation Advisory Group, which is chaired by the Ministry of Justice.

17 July 2012 : Column 638W


Lyn Brown: To ask the Secretary of State for Justice what assessment his Department has made of the need for further burial space and grounds (a) in London and (b) nationally. [116700]

Mr Djanogly: After careful consideration, I took the view last autumn that introducing a policy of reusing graves was not critical at this time. We have nevertheless committed to keeping the situation under review. In some circumstances section 74 of the London Local Authorities Act 2007 allows for the reuse of graves in London.

16 July 2012 : Column 544W


As L&RUK has no specific statistical expertise, we will not attempt to analyse the recent BBC data, other than to note it appears as though the median values [6] of parish town council and unitary authority data are broadly similar to the earlier government information.  Thus with no modifications in burial practice, the available space in these cemeteries is set to run out in about 22 years’ time.  Nevertheless, as the BBC headline indicated, at local level the situation is considerably more pressing.

However, there are three aspects from the 2004 survey that need to be taken into consideration: the BBC information does not include CofE and CiW churchyards, which although smaller than municipal cemeteries are more numerous, and at that time accounted for 31% of the estimated total area usable for burials [7];  CofE and CiW churchyards contain a significant number of graves that are over 100 years old; and, even if  a policy of grave re-use were to be introduced, it would not increase significantly the capacity available in the long-term: Tables 7 and 8 of the 2004 report indicate that such a policy would increase the median period of operation by 15 years for local authorities’ burial grounds, and by 20 years in the case of the CofE/CiW.

The re-use of graves is now beginning to be practised in London under the provisions of the 2007 Act: about 700 graves that are at least 75 years old are reported to have been re-used, or ‘shared’ in the City of London Cemetery and Crematorium in east London; the borough of Enfield has recently started the practice; Southwark and Westminster are considering it.  However although Harriet Harman’s Ministerial Statement in the Annex to the 2007 Report promised “to introduce measures which, using powers available under the Deregulation and Contracting Out Act 1994, will allow local authorities to re-use graves in their cemeteries, if they wish,” [emphasis added], no such general provision has been forthcoming.  Successive minister have continued to view this as “a local problem for local people”, rather than an urgent local problem that requires action or at least direction/coordination at a national level.

With regard to the approach of the Church of England to the re-use of graves, it will be apparent from reports in this blog of recent consistory court judgements, that faculties have been granted for “lifting and deepening”, Re West Norwood Cemetery [2012] Southwark Const Ct Philip Petchey Ch.[8],  and the courts are supportive of interment in family grave, Re Ivy Gertrude Brisbane deceased [2013] Lincoln Const Ct, Mark Bishop Ch. –  the “use of family graves are to be encouraged because they both express family unity and they are environmentally friendly in demonstrating an economical use of the land for burials”, [para. 9.5] –  but not where the movement of remains will not lead to any saving of space [in this case movement of ashes from one family grave to another], [para. 9.5.1].

Other practical issues have been examined by the Oxford Diocese which identifies: the movement of memorials, [see also the recent case Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch)]; faculties that have been granted reserving burial space and the diocese policy to limit this period to 25 years, rather than 100 years formerly; and the associated health & safety/aesthetic issues of the disturbance of remains during “lifting and deepening”.

However, as if to emphasize the public’s apparent total disinterest in the issue, on Wednesday this week, (2 October 2013) the e-petition, Recycling of Graves, will close after one year having attracted, to date, only 3 signatures.

David Pocklington

[1] Other solutions considered included: above-ground burial in mausolea, (see lower photograph of a columbarium in Volterra, Italy); more intensive use of existing space; promotion of cremation.

[2] B Wilson and J Robson Cemeteries and their Management, (Home Office On-Line Report 1/04), 2004].

[3] Ministry of Justice, “Burial Law and Policy in the 21st Century The Way Forward”, [2007],

[4] Home Office Consultation ‘Burial Law and Policy in the 21st Century: The Need for a Sensitive and Sustainable Approach’, June 2004.

[5] HC Deb 5 June 2007 cc 11-12 WS.

[6] The mean is the arithmetic average of a set of numbers, or distribution.  However, the median is the numeric value separating the higher half of a sample, a population, or a probability distribution, from the lower half. Whereas the mean is used for normal distributions, the median is generally used for skewed distributions.

[7] The 2004 report showed that the estimated total area usable for burials, excluding grave reuse, were 2447 Ha in the case of the CofE and CiW, and 5378 Ha for Local Authorities.

[8] A faculty was granted for the exhumation and re-interment in the same grave at a lower depth, in order to make room for further burials.

Religion and law round up – 29th September

Women bishops and “taint”, an unfair dismissal case, another case about reinterment and yet more on Richard III

The Church of Ireland’s first woman bishop

Last week came the news that the Revd Pat Storey is to be consecrated by the Church of Ireland as the first female Anglican bishop in the UK and Ireland. In response, Will Adam, editor of the Ecclesiastical Law Journal and Vicar of St Paul’s, Winchmore Hill, contributed a guest post pointing out that deacons, priests and bishops of the Church of Ireland, the Church in Wales and the Scottish Episcopal Church are not considered as “overseas” clergy under the law applying to the Church of England.

That means that the permission of the Archbishops of Canterbury and York is not required for such ministers to be invited to exercise the ministry of their orders in England. – which leads Dr Adam to suggest that, though there may be public policy reasons why the bishops of the Church of England might decide not to delegate any of their episcopal functions to a woman bishop from the Church of Ireland, it is difficult to see how they could prevent deacons and priests ordained by her from ministering in their dioceses and generated discussion on this and a number of other blogs.

So much for “taint“. And all very interesting (if you’re an Anglican) – so much so that Will’s post has had over 500 page-views

More news on bishops

During the past week Thinking Anglicans has provided a number of useful updates concerning the Church of England episcopate:

  • Schedule for the meetings of the Crown Nominations Commission at which appointments to vacant Sees will be discussed, including: Bath and Wells; Leeds; Exeter; Hereford; and Liverpool.

In addition, this week the Church of South India elected its first women to the episcopate.

Yet another persecuted Christian? – perhaps not

We reported the case of Dr David Drew, a paediatric consultant working in a multicultural and multi-faith department, whose habit of using overtly Christian references in e-mails to his colleagues allegedly irritated them so much that it led to his eventual dismissal. In Drew v Walsall Healthcare NHS Trust [2013] UKEAT 0378 12 2009 the EAT dismissed his appeal, concluding that the lower tribunal had used the correct comparator and that its conclusion that he had not been unfairly dismissed was neither perverse nor based on an error of law. Earlier reports suggested that Dr Drew was considering a further appeal but he later told the Wolverhampton Express & Star that he was calling it a day.

Perhaps the most sensible comment on the case was by Chris Hadrill, a member of the employment team at Redmans Solicitors, Richmond, who suggested that the case “shows how grievances at work can escalate and can cause the employment relationship to become fundamentally toxic”.

Richard III – the inside story

The details of Leicester Cathedral’s submission to the Cathedrals Fabric Commission for England concerning the necessary changes to the fabric that will be required for the re-interment of King Richard III, were published this week, here, and here. The technical details of the interment are:

– Richard III’s bones will be placed in a small lead ossuary, minimising the air around them, completely sealed, and if necessary, protected with inert material;

– The ossuary will be securely placed within a normal sized oak or elm coffin, which will sit within a brick vault on spacers to keep it off the floor and allow air movement;

– The vault will be formed within the floor of the chancel, sufficiently big to have some space around the coffin, and covered by a tombstone, which will physically close the vault.

It is anticipated that the thermal inertia of the ground will maintain an environment of relatively constant temperature and humidity, and the ossuary, coffin and vault will further moderate any changes in the environment to maintain a stable and safe environment for the remains.

Religion and the judiciary

Owen Bowcott reports in The Guardian  that ahead of the beginning of the new legal year on 1 October Peter Fisher, until recently a civil servant in the MoJ, and John Butcher, a Conservative member of Elmbridge Borough Council, have written to the Secretary of State for Justice calling for the abolition of the service in Westminster Abbey that traditionally precedes the annual Lord Chancellor’s Breakfast on the grounds that it

“prejudices judicial decisions on religious matters … The judge trying such a case is placed in a difficult position if [he or she] has attended the judges’ service [and] may appear to have prejudged the religious issue by publicly appearing to support particular beliefs.”

They also note the controversy surrounding the Scottish practice of holding two judges’ services at the start of the legal year – the Kirking of the Court at St Giles and the Roman Catholic “red mass” (red for a votive mass of the Holy Spirit) – about which the National Secular Society has complained that judges’ attendance may not be in accordance with the Statement of Principles of Judicial Ethics for the Scottish Judiciary.

Strange how times change: maybe it’s the Zeitgeist. During the events leading up to the Disruption in the Church of Scotland in 1843 one of the leading Evangelicals in the Kirk was Lord Moncreiff, who became a Senator of the College of Justice in 1829 but continued to attend the General Assembly of the Church and was one of the prime movers behind the Assembly’s Veto Act of 1834 against patronage. The Veto Act was duly struck down – by the Court of Session – and at the Disruption Moncreiff joined the Free Kirk. And no-one seemed to think any of this at all odd.

Reinterment for reburial – the presumption of permanence

In Re Ivy Gertrude Brisbane deceased [2013] Lincoln Cons Ct (Mark Bishop Ch.), a faculty was refused for the exhumation of the cremated remains of Mrs Brisbane, where almost 28 years ago she was buried with her parents in a family grave in the churchyard of St Peter’s Foston, Lincolnshire, and their reinterment in All Saints’ Church, Beeston Regis, Norfolk, where her husband was buried in 2012. The initial decision to bury Mrs Brisbane at St Peter’s was made by her sister Eileen since Mr Brisbane, the Petitioners’ father, was in no fit emotional state to make a considered decision about the burial of his wife’s remains. As time went by, Mr Brisbane became distressed with the decision made by Eileen, although she would not agree to the removal of the remains to Norfolk where he lived, about 100 miles away.

The Chancellor considered the facts in the light of the note prepared by the Rt Revd Christopher Hill, then Bishop of Stafford, on the theology of burial [1] and the associated decision of the Court of Arches in relation to Re Blagdon Cemetery. In refusing the application the Chancellor noted that almost 27 years had elapsed since the interment, during which no application was made by Mr Brisbane, notwithstanding requests by his family that he should do so, and that any distress that Mr Brisbane had experienced during his lifetime regarding his late wife’s ashes were no longer relevant following his death.

The opportunity to reunite the ashes of both parents in the Foston family grave was not made in 2012, and consequently, there would be no greater economic use of land by granting the application. Whilst some existing family members were in favour of exhumation, one close member, Mrs Brisbane’s sister, remained opposed to that during her lifetime.

Finally, he noted that an application to exhume based on seeking to achieve what a deceased partner wanted in his life, but yet took no steps himself to achieve, was a significantly weaker than one made by that partner during his lifetime; and the convenience of existing family members in visiting a parental grave was not a reason to displace the presumption of permanence.

And finally…

The BBC News Magazine is running a fascinating piece on Cookisto, an idea which has spread from Greece. Home cooks produce extra helpings of the food they are preparing that day, upload details of the dishes online, then wait for people from their locality to order portions for that evening’s supper. In Athens the price of a portion is usually between three and four euros (£2.50 to £3.40); and the Greek website has attracted 12,000 cooks in the last few months. It presses all the right buttons: sharing, community, frugality, good stewardship, avoiding waste…

What attracted Frank’s interest, as a pretty serious day-to-day cook, was the news that Cookisto is coming to London. Then, as a veteran of the Great Jam-jar Controversy the horrible thought occurred, “Er, but what about the Food Hygiene Regulations? Or liability if someone ends up with food-poisoning?” So we’re sorry to disappoint prospective customers, but L&RUK will not be cooking extra portions of venison casserole with herb dumplings and red cabbage any time soon.

[1]  An extended form of the Note is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc Law Soc (35) 447

Talking religion in the workplace: how far can you go?

The issue of manifesting one’s religion at work has come up yet again: this time in relation to a medic who used overtly Christian references in his professional communications – on one occasion circulating to his colleagues a prayer of Ignatius Loyola which he described as a personal inspiration in his “frail and imperfect efforts to serve my patients, their families and our department”.

In Drew v Walsall Healthcare NHS Trust [2013] UKEAT 0378 12 2009 Dr David Drew, a paediatric consultant, worked in a multicultural and multi-faith department. His habit of using Christian references in e-mails caused irritation; and an internal investigation recommended, inter alia, that he should keep his personal and religious views to himself. He did not accept that and raised a grievance; and it was agreed that the Royal College of Paediatrics should carry out an independent review.

The College’s review panel of two consultants and an HR practitioner made a number of recommendations, one of which was that he should not include religious references in professional communications, to which Dr Drew replied that he accepted the panel’s recommendations but subject to certain exceptions. As to the panel’s recommendation on religious references, he replied:

“I cannot agree to this. Our language is replete with allegory and metaphor much of it with a religious connotation. I am not a fanatic. I am not a proselytiser. My purpose is purely expressive and not religious at all … I believe this recommendation is unnecessary. I do not believe you are likely to have difficulty in this area again if you are willing to trust me”.

He was ultimately dismissed; and his claim of direct discrimination before an Employment Tribunal was unsuccessful. The ET concluded that he had not been treated less favourably on the grounds of or because of his Christian religion or beliefs, contrary to the Employment Equality (Religion or Belief) Regulations 2003 (which was the law in force at the relevant time). The Telegraph carried a fairly balanced contemporary report of the proceedings in the ET.

Earlier this month the Employment Appeal Tribunal dismissed his appeal. The EAT held that the lower tribunal had directed itself correctly in following and applying the guidance in London Borough of Islington v Ladele [2008] UKEAT 0453 08 1912. It had identified the correct hypothetical comparator: someone whose relevant circumstances were the same as Dr Drew’s (apart from Dr Drew’s protected characteristic as an “orthodox Christian”) and who had acted in the same way as Dr Drew but within the frame of reference of that person’s own belief system – whether a religious or a non-religious one. The ET had been entitled to conclude that such a comparator would have been treated in the same way as Dr Drew had been; nor was its conclusion perverse or based on an error of law.

The Daily Mail subsequently reported that “Dr Drew was meeting with his legal team yesterday to discuss the case” but he later told the Wolverhampton Express & Star that he was not proceeding any further.


Dr Drew contended that his dismissal was not about religion at all, but the result of his repeated warnings that cost-cutting was putting patient safety at risk – “It’s all about whistleblowing” – but the judgment of the EAT concentrated, nevertheless, on the religious issue. Perhaps surprisingly, Article 9 ECHR did not even receive a mention in the EAT’s judgment; but the issue comes very near the kind of “clash of rights” that is so common in human rights cases. Dr Drew may have thought that he was merely being open about his Christian faith without realising how deeply irritating displays of religiosity can sometimes be for the non-religious – or for that matter, for people of other religious views.

To the question, “is there a right to hold religious views in the workplace?” the answer is obviously “yes”. To the question, “is there a right to bang on about one’s religious views in the workplace?” the answer is probably that it depends on circumstance and is largely a matter of degree. Issues of health and safety aside, it is hardly unreasonable behaviour for an observant Jewish man to wear a kippah or a devout Muslim woman  to wear a hijab in a secular workplace. On the other hand, a Sikh who was constantly being sent proselytising e-mails by an Evangelical Christian colleague might be entirely justified in getting ratty and complaining. There is no “right” not to be exposed to opinions with which one disagrees – for a fairly extreme case in point see Fraser v University & College Union [2013] ET 2203290/2011 – but, equally, there is surely no “right” to promote one’s religious views to a degree that irritates others.

Some cases about religion in the workplace relate to matters that are critically important to the people concerned: an obvious example is Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH 36, about the Roman Catholic labour ward coordinators who are claiming a conscientious objection to what they see as helping to manage a ward in which abortions are performed – and on which the forthcoming judgment of the Supreme Court is awaited with interest. But perhaps cases like Drew would never get as far as an EAT at all if people of faith simply learned to act with a degree of restraint and consideration for the feelings of others.

Or as Mark Twain put it, with his usual mixture of wit, brevity and insight, “All things in moderation, including moderation”.

Wrong-footed on Richard III

As the Ministry of Justice deliberates a potential challenge to the High Court decision to grant permission for a judicial review, there have been a number of peripheral developments which are summarized below.

21 July 2013: In its Press Release, “King Richard lll will get a raised tomb” Leicester Cathedral states “[t]here are several possible designs for the tomb, which are being developed by van Heyningen and Haward architects, on behalf of the Cathedral, and a working party that includes representatives from the Richard III Society, the University of Leicester and the City Council  . . . . . . Speaking after seeing the plans Dr Phil Stone, Chairman of the Richard III Society was delighted. ‘I think that the design is absolutely fantastic’ he said.”

19 September 2013: The BBC reported “Leicester Cathedral has unveiled its plans for a tomb to hold the remains of King Richard III” – a tomb of Swaledale fossil limestone with a rose carved in white limestone, surrounded by a band of dark Kilkenny limestone and carved with king’s name, dates (1452-1485), motto (Loyaulte me Lie – ‘Loyalty binds Me’) and boar badge.  The tomb with its deeply carved cross is tilted slightly to the east as a symbol of resurrection, and the area is defined by wooden screens.

Leicester Cathedral quotes Dr Stone as describing the design as “utterly inspired’, although the Plantagenet Alliance and others were less complimentary.  Those clicking onto the video link on the BBC report above will see the preliminary excavations at the site of the tomb – but are trainers the approved PPE footwear for those operating a pneumatic drill? [1].

23 September 2013: The Cathedral announced that it had now formally submitted its proposals to the Cathedrals Fabric Commission or England regarding all the changes to the fabric of the Cathedral it believes will be necessary for the re-interment of King Richard III, here, and here.  The submission stated “key external consultees have included: CFCE, English Heritage, the Victorian and Twentieth Century Societies, the Society for the Protection of Ancient Buildings (SPAB), the city and county councils, the University of Leicester, Leicester Tigers, regimental organizations, and the Richard III Society”.

23 September 2013: A further report from the BBC indicates that “members of the Richard III Society have withdrawn funding meant for the king’s tomb at Leicester Cathedral because they are unhappy with the design”.  Members of the Society had pledged about £40,000 to go towards the tomb but Philippa Langley, who initiated the search for the remains, was quoted as saying some large donors had contacted her to ask for their money back. She concurred with the international members of the society who had contacted her and indicated that it was “a very difficult design” which is “ too modern and stylised, and designed with a cathedral in mind – not a medieval warrior king”.

For the cathedral, Canon Peter Hobson [2] countered by saying that it appeared as though some of the “Richard III devotees” were only approaching the design from their own perspective whereas the cathedral had to consider all aspects, including planning restrictions placed by the Church’s Cathedrals Fabric Commission, as well as keeping it as a place of worship.

However, the Society’s contribution is less than half the costs of the tomb and vault, £96,000, and substantially less that the overall £1.3M costs of the project.  The Cathedral stated that it had never relied on the offer of money from the Society to pay for the tomb, and has quite rightly indicated that whilst it would rather have the support of the Richard III Society, this is “not at any price”.

24 September 2013: The Leicester Mercury ran a story suggesting that the Richard III Society is yet to make a final decision on whether it will donate cash to help fund the king’s tomb at Leicester Cathedral, stating

“Society spokesman Richard Van Allen spoke to the Mercury yesterday, following reports the group had “withdrawn” funding as some of its members were not happy with the design.  It has been suggested we’re withdrawing funds. We are not. The cathedral has never said it was going to take the funds in the first place. We want to take the time to have a look at the design and talk to our members to see if they still want to contribute.”

 and in addition to these developments

20 September 2013: A guest contributor to The Tablet blog, Finally, the judicial review raises hopes of a Catholic burial for Richard III” announced

“Sir Charles [Haddon-Cave] . . . . mentioned two online government e-petitions, one calling for the king to be buried in Leicester and another advocating York Minster. But he didn’t mention the petition for a Catholic burial, which, although it attracted more than 1,200 signatures, gained far less support than the others. That petition has now closed but I have started a new petition, arguing the case for a service and burial in a Catholic church.”

Readers will be aware of our views on the significance of e-petitions, here.


Recent events have been marked by a series of communications faux pas, from which no party appears to have been totally immune.  A common feature is the uncertainty as to whether the spokesperson quoted in the media represented the view of the organization as a whole, or was sought out by a reporter as someone who could be relied upon to express a particular point of view.  As with most news stories, the initial headlines tend to have the greatest impact and those indicating “Funds for Richard III’s tomb are pulled” have greater weight than subsequent statements of “clarification”.

The confused picture emerging from the Richard III Society has been detrimental to the image of the Society with its Royal patronage, which until recently had adopted an impartial but cooperative approach to the re-interment. For the cathedral, although there have been a number of named spokespersons – the Bishop, the Dean and the Canon Missioner – they all appear to have been “on message” and, as might be expected, “singing from the same hymn sheet”.

Since anyone can raise an e-petition, the recent call for a Catholic burial for Richard III clearly does not represent the views of the Roman Catholic Church in England and Wales.  However, initiating a new e-petition on the back of an earlier poorly-received one is not necessarily a good idea, and the poor take-up (47 signatories at the time of writing) will send a message to some that the Church as a whole is not concerned. On 24 September, a BBC headline read “Richard III parliamentary petition misses target”, alluding to the fact that the pro-York petition had ended and at only 31,260 names fell short of the 100,000 required to trigger a parliamentary debate.

[1] See video clip at 33 to 34 seconds.  These may have been one of the brands of safety footwear that incorporates a degree of protection, i.e. a steel toe cap, into a trainer shoe, but they did not appear to be particularly robust for this application.

[2] Canon Peter Hobson, formerly Director of St Martins House, was seconded to the Cathedral Team as Acting Canon Missioner with a view to concentrating on Richard III and Cathedral Gardens as well as assisting with liturgical and preaching duties

Women bishops and the recognition of Orders

Recent decisions of the Governing Body of the Church in Wales and the Bishops of the Church of Ireland have given added impetus to the wider debate about women in episcopacy.

Will Adam, editor of the Ecclesiastical Law Journal and Vicar of St Paul’s, Winchmore Hill in the Diocese of London, has kindly contributed the following guest post.

The last couple of weeks have seen two landmark decisions in the Anglican churches of the British Isles. On 12 September the Governing Body of the Church in Wales voted in favour of legislation to permit the ordination of women as bishops. On 20 September it was announced that on the previous day the Revd Pat Storey had been elected as Bishop of Meath and Kildare.

This is bound to bring up again the question of the recognition in a Church which does not permit the ordination of women as bishop of episcopal acts performed by a bishop who is a woman.

The first occasion on which this topic reared its head in the Church of England was at the time of the consecration of the first Anglican woman bishop in the Episcopal Church of the USA in 1989. At this point women had not been ordained priest in the churches of the British Isles. In advance of this event the Archbishop of Canterbury issued a statement (on behalf of himself and Archbishop Habgood of York) in which he stated that in the exercise of their powers under the Overseas and Other Clergy (Ministry and Ordination) Measure 1967 they would not issue permission to minister in the Church of England to priests or deacons ordained by a women bishop overseas.

In 2004 the Legal Advisory Commission of the Church of England issued an Opinion[1] prompted by a request from the House of Bishops’ Working Party on Women in the Episcopate. This detailed opinion concluded inter alia that:

  1. The 1967 Measure refers to the recognition, or otherwise, of orders of churches rather than orders conferred by individual bishops;
  2. The validity of ordinations carried out in a church in communion with the Church of England is a matter for the canon law of that church and is assumed by the 1967 Measure;
  3. There are public policy reasons why, whilst it is not possible for women to become bishops in the Church of England, the Archbishops may not permit (under s 4 of the 1967 Measure) overseas bishops who are women to perform episcopal functions (confirmation or ordination) in England;
  4. Whilst under s 5 of the Episcopal Church (Scotland) Act 1864 there is a statutory power for a bishop to refuse (without giving reason) to license or institute a priest or deacon ordained in the Scottish Episcopal Church, such limitations do not apply to those ordained in the Church of Ireland or Church in Wales.

Details of individual applications and grants of permission under the 1967 Measure are not made public. It is not clear, therefore, whether, since 2004, the Archbishops have permitted priests (male or female) ordained overseas by female Anglican bishops to minister in the Church of England. The Opinion reports that women bishops attending the Lambeth Conference 1998 were asked by Archbishop Carey not to perform episcopal functions whilst in England and anecdotal evidence suggests that this remains the practice for visiting women bishops.

However, the consecration of a woman as a bishop in the Church of Ireland changes the situation. Deacons, priests and bishops of the Church of Ireland, Church in Wales and Scottish Episcopal Church are not considered as “overseas” clergy by the law applying to the Church of England. This is significant, because the permission of the Archbishops of Canterbury and York is not required for such ministers to be invited to exercise the ministry of their orders in England.

Whilst there may be public policy reasons why the bishops of the Church of England may decide not to delegate any of their episcopal functions to a woman bishop from the Church of Ireland it is difficult to see how they could prevent those deacons and priests ordained by her from ministering in their dioceses. S 1 of the Church of England (Miscellaneous Provisions) Measure 1995 states that clergy of the Church of Ireland may be invited to minister in parishes ‘subject to the same conditions as would be applicable to them if they had been admitted to Holy Orders by the bishop of a diocese in the Church of England.’ At present there is no legislation that imposes a condition such that one ordained by a female bishop is unable to be so invited.

When legislation is framed to permit the ordination of women bishops in England it may well be accompanied by provisions partially to restrict their ministry and that of those ordained by them. However, in the meantime, the legislative framework exists to permit ministry, on a temporary or permanent basis, of those ordained by a women bishop in Ireland on the same basis as all ministers ordained in the Church of England.

[1] Legal Opinions Concerning the Church of England (8th Edition, London, 2007), pp 71-84.

Niqabs and burqas: the UK’s pop-up debate

The last three or four weeks have possibly seen more public discussion of Islamic dress – in particular, veiling – than we have had in the previous couple of years. The debate started when a woman defendant, D, appeared veiled in Blackfriars Crown Court and refused to reveal her face on the grounds that, as a Muslim, she could not appear unveiled in the presence of men who were not part of her immediate family. As we reported on 25 August, at her first appearance HHJ Peter Murphy told her that she could not stand trial in a veil which only revealed her eyes because her identity could not be confirmed.

Coincidentally (as reported here), it then came to light that Birmingham Metropolitan College had banned students, staff and visitors from wearing veils on security grounds –and after an outcry at what was seen simply as discrimination against Muslim students the ban was rescinded. Next, on 15 September the Daily Telegraph reported Home Office minister Jeremy Browne as calling for a “national debate” about whether the secular law should prevent young women from having the veil “imposed” on them.

Then at the plea and case management hearing in D(R), R v [2013] EW Misc 13 (CC) HHJ Murphy gave the following directions:

“(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings.

(2) The defendant is free to wear the niqaab during trial, except while giving evidence.

(3) The defendant may not give evidence wearing the niqaab.

(4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.

(5) … [T]hat no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court” (para 86).

(By this point it will have become apparent that HHJ Murphy did not reveal the defendant’s name. That did not stop at least one newspaper from identifying the defendant and printing her photograph – but we don’t propose to do the same.)

HHJ Murphy took the view that the issue of veiling in court was not one of general guidance but a question of law.  Article 9 ECHR gave the defendant a qualified right to manifest her religion or belief; but the court might be entitled to place restrictions on a qualified Convention right. While he accepted the sincerity of D’s belief about veiling in public (para 14), it was essential to the proper working of an adversarial trial that all involved – judge, jury, witnesses and defendant – should be able to see each other at all times during proceedings, partly for identification but also to assess the credibility of witnesses and because “juries very properly rely on their observation of the defendant, not only when she gives evidence (if she does so) but throughout the trial” (para 30). In that context he cited with approval the concurring opinions of LeBel and Rothstein JJ in the Supreme Court of Canada in R v NS 2012 SCC 72 (CanLII) at para 78:

“A clear rule that niqabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society. This rule should apply at all stages of the criminal trial…”.

The Guardian then reported Home Secretary Theresa May as telling Sky News – perhaps surprisingly – that

“I don’t think the government should tell women what they should be wearing. I think it’s for women to make a choice about what clothes they wish to wear: if they wish to wear a veil that is for a woman to make a choice. There will be some circumstances in which it’s right for public bodies, for example at the border, at airport security, to say there is a practical necessity for asking somebody to remove a veil. I think it’s for public bodies like the Border Force officials, it’s for schools and colleges, and others like the judiciary, as we’ve recently seen, to make a judgment in relation to those cases as to whether it’s necessary to ask somebody to remove the veil. But in general women should be free to decide what to wear for themselves.”

Then the Department of Health asked the General Medical Council to review whether or not NHS staff in England should be allowed to wear full-face veils. Health Secretary Jeremy Hunt said that he had a “great deal of sympathy” with patients who do not want to be treated by a doctor or nurse with their whole face covered but stressed the matter was for professionals rather than politicians to address. He told Sky News:

“This is something that is decided locally by NHS trusts and I strongly support the principle that hospitals should have that local autonomy. But I do want to make sure we have the right professional guidelines in place so that patients can be confident that they are able to see a doctor or nurse’s face whenever they should. I think it should be a professional matter not a political one so we have written to the professional regulator the GMC to ask for their guidelines”.

Dan Poulter, one of Hunt’s deputies and himself a doctor, made the point that effective verbal and non-verbal communication was a vital part of good patient care and that being unable to see a healthcare professional’s face could be “a barrier to good and empathetic communication with patients and their families”. In the wake of this, the Telegraph reported that 17 NHS hospitals across five NHS trusts had already instituted their own bans on front-line staff wearing the niqab while in contact with patients.


The D(R) case, in particular, has been the subject of extensive comment, both in the media and by politicians. UKHRB includes predictably measured and analytic posts by Adam Wagner, here and Alasadair Henderson, here. Adam Wagner goes so far as to suggest that, though HHJ Murphy had taken great care over the issue and that his ruling is “is in many ways a model of how a complex human rights issue should be approached; reasonably and sensitively” it could still be overturned by a higher court, which might for perfectly sound reasons strike a different balance. At Nothing like The Sun, Francis FitzGibbon QC suggests that Ms D could simply have been left to take the risk that because the jury could not see her they would give her evidence less weight – and that if that harmed her defence, tough. In a rather similar vein, Matthew Scott at Barrister Blogger argues that trials should not be decided on what a defendant looks like but on the evidence of guilt, and that the defendant’s appearance or demeanour should have nothing to do with the outcome. Carl Gardner at Head of Legal makes some interesting detailed comments on the judgment  – which he finds unimpressive. On the other hand, at Halsbury’s Law Exchange Felicity Gerry describes it as “a classic exercise in reasonableness”.

The root of the problem is most probably the pop-up nature of the veiling debate. The issue seems to have crept up on politicians unawares and their positions are totally unprepared.

Some of the comment from the political centre-right, such as Theresa May’s, has been surprisingly measured: Melanie Phillips’s piece in the Mail, on the other hand, starts perfectly sensibly but ends with the predictable melanophilippic. Sarah Wollaston, Conservative MP for Totnes, wrote an anti-niqab piece in The Telegraph from a feminist perspective concluding that “Sometimes you have to force people to be equal” – attracting much unfavourable comment on Twitter and a stentorian counterblast from across the Atlantic. From the centre-left (or so we assume), Tehmina Kazi, director of British Muslims for Secular Democracy, was reported as suggesting that what is needed is an internal debate within Muslim communities themselves about the rhetoric around veiling. Responses from leading figures in the Labour Party have been unexpectedly muted, though perhaps that is because they have been busy preparing for their party conference.

Possibly the generally low-key reaction of politicians on the front benches of all three parties is political expediency, given the sensitivity of the court case, and symptomatic of a general reluctance to be drawn into a potentially explosive issue. Back-benchers, on the other hand, seem to have no such qualms; and lurking behind all this is Philip Hollobone’s Face Coverings (Regulation) Bill, stalled and unlikely to make any further progress, given that it is currently scheduled for second reading on 28 February 2014. Hollobone proposes a fine not exceeding Level 1 on the standard scale for wearing “a garment or other object intended by the wearer as its primary purpose to obscure the face” – and since his Bill provides exclusions on grounds such as health and safety, its target is pretty obvious. (Perhaps it is worth pointing out in passing that though May and Hunt both address the issue of asking a veiled woman to remove her veil, neither comments on the issue of veiled public officials addressed in clause 3 of Hollobone’s bill.)

It appears to us that what is needed is a period of quiet reflection rather than any immediate “national debate”. Even though it affects only a tiny minority of women, veiling is an extremely sensitive issue; and a national debate for which no-one is properly prepared may well do more harm than good. Moreover, if opponents of the niqab are correct in seeing veiling something that women are sometimes pressured into against their will, fining them for doing so will hardly help liberate them from that particular kind of oppression.

Cite this article as: Frank Cranmer, "Niqabs and burqas: the UK’s pop-up debate" in Law & Religion UK, 24 September 2013,

Pyres, greenhouses and bicycle stands: What is a building?

Although R(o.a.o Ghai) v Newcastle CC & ors concerned the fulfilment of the wishes of Davender Ghai to be cremated in accordance with Hindu beliefs (i.e. on a traditional open air pyre), the appeal judgement turned upon the meaning of “building”, on which Lord Justice Moore-Bick, MR commented [para.36]

“[t]here have, predictably, been many cases which have required the courts to consider the meaning of the noun “building”, but the outcome has inevitably been governed by the context”.

Unsurprisingly, the same media attention was not given to Re St. Peter in the East, Oxford [2013] Oxford Cons Ct (Alexander McGregor Dep. Ch), which concerned the replacement of existing structures in the churchyard of a redundant church appropriated by a pastoral scheme for the use of an Oxford college. Nevertheless, both cases centred around what is meant by “building”, and some useful comparisons may be drawn between them.

R(o.a.o Ghai) v Newcastle CC & ors

The context of the case is summarized in the statement of Moore-Bick LJ who said [para.10]

“The combined effect of the [Cremation Act 1902  [1]] and the [Cremation (England and Wales) Regulations 2008 SI 2841 [2]] is, therefore, that a cremation can only lawfully take place in a structure (i) which is a “building”, reading regulation 13 together with section 2, (ii) which has been constructed in a location which satisfies section 5, (iii) which is “fitted with appliances for the purpose of burning human remains”, pursuant to section 2, and (iv) whose “opening has been notified to the Secretary of State”, under regulation 13.

Counsel for the Treasury Solicitors, named as an Interested Party, contended that a structure could only be a “building” within the Act if it was “an inclosure of brick or stonework, covered in by a roof”, and supported this by three arguments [3].  However, the judge considered [para. 33] that: the proper characterisation of the issue was the more specific question whether a structure acceptable to Mr Ghai would be a “building” within the section, [para.33]; there is no reason not to give the word “building” its natural and relatively wide meaning in section 2 of the Act, [para 32]; since if a restricted meaning were required by the Act, the type of structure in which cremations could occur would have been restricted by Regulations issued under section 7, [para.38]. The judge concluded [at para.39]

“[i]n these circumstances, I have come to the conclusion that Mr Ghai’s wishes as to how, after his death, his remains are to be cremated can be accommodated under the Act and the Regulations. This is because the various structures I have described in paragraphs 14 to 18 above, namely the cremation area in the Ceuta premises and the various structures in India, are “building[s]” within section 2 of the Act”.

In practical terms, however, it is likely that other legislation will govern whether an cremation on an open air pyre is permissible.  Following the judgement, Government (MoJ, Defra, DCLG) and the industry sector issued statements [4]  to the effect that burning bodies anywhere other than in an authorized crematorium remains a criminal offence and that any such building must have planning permission, meet environmental criteria and obtain the relevant licences.

Re St. Peter in the East, Oxford

The petition for a Faculty in Re St Peter in the East, Oxford concerned the replacement of existing structures in the churchyard of a redundant church which had been appropriated by a pastoral scheme for the use of an Oxford college, St Edmund Hall. These included: a new gardener’s office; greenhouse and cold frames; three storerooms; the removal of existing sheds and other structures; new bicycle stands to replace old ones; new fencing; and the relocation of re-location of six monuments within the churchyard (five headstones and one box tomb).  The appropriate planning permission had been applied for and granted by the college, and the Diocesan Advisory Committee had issued a certificate advising that it had no objection to the proposals. Likewise, the Parochial Church Council, with the concurrence of the incumbent, has passed a resolution consenting to the proposals, and no letters of objection were received either as a result of the public notice or otherwise.

Relocation of monuments

This aspect of the petition was relatively uncomplicated, and concerned the removal of some, but not all of the monuments in the churchyard in order to clear space for some of the proposed new structures.  The legal issue here was that the monuments are the property of the person who set them up during that person’s lifetime and thereafter become the property of the heir at law of the person commemorated (Corven’s Case (1612) 12 Co Rep 105, 77 ER 1380) [5]. Whilst their removal or relocation without the owner’s consent would amount to trespass at common law, section 3(2)(i) of the Faculty Jurisdiction Measure 1964 provides for “the moving, demolition, alteration or execution of other work to any monument” inter alia in such  circumstances, but requires that “reasonable efforts” have been made to find the owner.  Although the College Home Bursar had indicated that none of the monuments had been visited in the previous 12 years, the chancellor nevertheless advertised their proposed movement locally, and in the absence of any response or other objections, granted a faculty for their movement.

Building on disused burial grounds

Section 3 of the Disused Burial Grounds Act 1884 provides that “[i]t shall not be lawful to erect any buildings upon any disused burial ground, except for the purpose of enlarging a church, chapel, meeting house, or other places of worship”, for which the interpretation of “building” is given in section 2, ““building” includes any temporary or movable building [6]”.

However, the college stated in an email to the registry, [para. 10],

“[i]n order to comply with the requirements of ecclesiastical law [7], we believe we should meet our functional need with temporary structures rather than permanent buildings. We accept that there is a ban on permanent buildings, except for a few exceptions which do not apply to our proposals.

In that spirit, we have instructed our structural engineer to redesign our structures for that they would not be based on foundations but would rather sit upon a rigid base that would allow them to be lifted by a crane and taken away, should that be desirable at some future date. Outwardly they would appear as they do in all materials previously submitted. Internally they would have a steel grid that provides a rigid base. The structures would sit on top of the pavers that have already been proposed and discussed. A greatly magnified view of the detail of the design is attached to this email. All other elements remain the same. …”

Although proposals contained in the petition were ancillary to the use of the churchyard (as a garden and open space within the boundary of the College, and for the storage of bicycles), the deputy chancellor agreed that neither use is inconsistent with the consecrated character of the land, [para.21].

With regard to the meaning of “building” for the purposes of the 1884 Act, the deputy chancellor cited the decision of the House of Lords in Paddington Corporation v Attorney General [1906] AC 1, in which the Earl of Halsbury LC stressed that the principal consideration must be the wording of the statute, i.e. “the meaning of the prohibition contained in either of the Acts referred to” and “anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition”. Although referred to an alternative approach [8] adopted by Buckle Ch in Re St Peter the Great, Chichester [1961] 2 All ER 513 at 519I – 522C,  [para. 38] the deputy chancellor did not find this useful, nor did he accept the proposition, following the judgment of Hansell Ch in Bermondsey Borough Council v Mortimer [1926] P 87, that

“even if the structure technically falls within the description of a building or “anything that approaches the character of a building” … it will nonetheless involve no contravention of the Act if it is de minimis and/or is consistent with the overriding purpose of the land as an open space.”

and concluded

“I have to approach the petition on the basis that “anything that approaches to the character of a building, whether temporary or permanent, is obviously within the prohibition” (per Lord Halsbury) and that the word “buildings” in the 1884 Act “means erections which would cover some part of the ground, as the enlargement of a church would do” (per Buckley J).

Decision on Petition

Applying the above principles, the elements of the petition were decided as below:

(a) Cycle racks and screens: allowed, as not being buildings, and “a significant improvement on the present scheme”;

(b) Greenhouse and cold frames: the greenhouse does “approach the character of a building”, and permission was refused; the cold frames were allowed but without the greenhouse, it was assumed that there would be no point in constructing them.

(c) Gardener’s office and tool shed: although prefabricated, it was held that these approached the character of a building, were within the prohibition and were not allowed;

(d) Stores: whilst the proposed “store G01” clearly approached to the character of a building and was prohibited by the 1884 Act, the proposed “store G06” was more of a borderline case, being more akin to a large cupboard, and on balance was permitted.

However, the Deputy Chancellor concluded by stating [paras. 64 and 65]

“I consider the outcome of this petition to be unsatisfactory. In my view the entirety of the petitioners’ proposals were not only satisfactory but also desirable  . . . . . . The fact that a number of elements of the proposals (which would represent significant improvements to the churchyard) cannot be authorised is entirely because of the prohibition imposed by section 3 of the 1884 Act. Were it not for that statutory prohibition I would have granted a faculty for the proposals in their entirety.

The petitioners have gone to some trouble in seeking to produce proposals that would not infringe the 1884 Act and [counsel] has argued everything that could properly be argued in favour of the proposals. It is unfortunate that the 1884 Act presents an obstacle to various aspects of them. It is not at all clear that the Act serves a useful purpose. It certainly has not done so in the present case. Its effect has already been modified to a significant extent by the Disused Burial Grounds (Amendment) Act 1981 which permits the erection of buildings on disused burial grounds where certain conditions are met. Unfortunately the 1981 Act does not apply to any consecrated ground so it is of no assistance to the petitioners.”

Comment: Whilst the arguments on Ghai succeeded as a result of the broad interpretation given to the scope of the term “building”, those in Re St Peter in the East, Oxford were unsuccessful on account of the narrow meaning given to the term.  Nevertheless, the approach of the court in each case was shaped by the nature of the underlying legislation which was, respectively: inclusive, allowing any building “fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto” and meeting the criteria established by the Secretary of State under section 7; or exclusive, restricting “[the erection of] any buildings upon any disused burial ground…“

In terms of the continuing usefulness of these restrictions on disused burial grounds, it should be noted that  where major infrastructure works are envisaged, the enabling statutory measures may disapply the ecclesiastical and secular provisions, e.g. in relation to burial grounds, e.g. section 39(1), Channel Tunnel Rail Link Act 1996 which states

“[n]othing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise shall have effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Part of this Act.”

[1] Place where cremation may take place: Regulation 13.  No cremation may take place except in a crematorium the opening of which has been notified to the Secretary of State.

[2] Section 2: The expression “crematorium” shall mean any building fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto.

[3] (i) the view of Lord Esher MR in Moir v Williams [1892] 1 QB 264, 270; (ii) the desirability of having a clear and simple meaning for the word, as breach of the Act would be a criminal offence; and (iii) the need to ensure that cremations could not be seen by the general public.
[4] Joint Statement from the Federation of British Cremation Authorities, the Cremation Society of Great Britain, and the Association of Private Crematoria and Cemeteries following the issue of “final orders” regarding the Court of Appeal ruling on funeral pyres, 26th February 2010; and Ministry of Justice Statement, ‘Funeral Pyres – Court of Appeal Judgement in the Case of Ghai’, 29th March 2011.
[5] In an earlier post we noted the comprehensive guidance on the ownerships of headstones &c that had been given in Re St Thomas Kilnhurst [2013] Sheffield Cons Ct (David McClean Ch).
[6] Although section 2 of the 1884 Act as it now stands was only inserted by the Statute Law (Repeals) Act 1993, the same definition of “building” has applied for the purposes of the 1884 Act since 1887 when section 4 of the Open Spaces Act 1887 enacted that the expression “building” in the 1884 Act included any temporary or movable building: see Bermondsey Borough Council v Mortimer [1926] P 87, 91.)
[7] Although disused burial grounds fall within the faculty jurisdiction of the Church of England, the relevant controls are governed by statutory legislation. [8] i.e. (i) Would the ordinary man think it was a building? (ii) Has the relevant structure four walls and a roof? (iii) Can one say that the structure is built?”.