Church courts catch-up, January 2015

In December 2014 we posted a summary of earlier posts relating to specific aspects of the faculty jurisdiction in addition to links to, and brief summaries of, more recent consistory court judgments concerning exhumation, reordering of churches and a range of other topics. In this post we provide further updates, the majority of which relate to exhumation and churchyard memorials &c.

Our post Clergy discipline, former clergy and parochial fees reviewed a recent disciplinary tribunal judgment on the retention of parochial fees for funerals and cremation services. This will be followed up by a consideration of the Church’s recent guidance on this issue.

Re Holy Trinity Eccleshall [2014] Lichfield Const Ct, Stephen Eyre Ch.

The circumstances giving rise to the petition – a faculty seeking permission for a memorial contrary to the Churchyard Regulations, but in a churchyard in containing other non-conforming memorials – had been addressed by the Chancellor in his in judgment of April 2012 in relation to a proposed memorial in the churchyard of Newchapel, St James.  The relevant parts of this judgment stated:

[21] “ … permission for a memorial which does not accord with the Chancellor’s Regulations will not be given lightly. A powerful reason must be shown before a faculty for such a memorial will be given. In Re St. Mary: Kingswinford [2001] 1 WLR 927 Ch. Mynors summarised circumstances in which such a faculty could be given … (at paragraph 38):


[22] The four potential reasons given by Ch. Mynors are useful as examples of the circumstances where a faculty might be given for a memorial which does not conform to the Chancellor’s Regulations. However, they are, in my view, to be seen as illustrations only. As Ch. Holden said [in Re Christ Church: Harwood [2002] 1 WLR 2055] it is impossible to identify definitively and in advance all the matters which are capable in particular cases of being a sufficiently exceptional reason to justify the granting of a faculty.


[23] The requirement that there be a powerful reason if a memorial which does not conform to the Chancellor’s Regulations is to be permitted is a matter of justice and fairness to those who have erected conforming memorials.

In the instant case, the Diocesan Advisory Committee recommended approval [7] ”as there was a precedent for them in the immediate vicinity”; however  the PCC opposed the petition [8] since the churchyard already contains a considerable number of memorials and has something of a crowded appearance; and presence of memorials with kerbs makes the maintenance of the churchyard as a whole more difficult. The Chancellor noted that in his judgment of March 2013, he refused a petition from the Vicar and churchwardens of Holy Trinity seeking permission relating to the area for the burial of cremated remains to take the form of a series of individual plaques along the edges of the Bishop’s Path, indicating that any memorialisation there should take the form of a single collective memorial with no plaques or memorials at the points of individual interment.

The issue of the general maintenance of the churchyard was considered to be significant. Whilst is was right to point out that there are already a number of kerbed memorials and so those maintaining the churchyard have to take account of the effect of those, nonetheless, it is legitimate to say that the presence of a further kerbed memorial will add to the difficulties involved in maintaining the churchyard in a way which a single upright stone would not.  Faculty refused.

[Link to Judgment] [ Top of Page]

Re Holy Trinity Stratford upon Avon [2015] Coventry Const Ct, Stephen Eyre Ch.

The issues raised in this case are similar to those in Re Holy Trinity Eccleshall, although the facts and outcome are different. The petitioners sought to place a 0.25m square memorial tablet in the churchyard to commemorate two interments in the same plot in 2005 and 2007 which were not currently marked by any memorial. Although there have been no burials in the churchyard since 1879, the interment of ashes has continued and apart from eight small memorial plaques, these are almost all unmarked.  These plaques mark interments made over a short period in the 1960’s[1] but the practice was stopped to preserve the green sward of the churchyard.  However, in 2011 the Deputy Chancellor granted a faculty for the creation of a memorial wall bearing plaques to commemorate those whose cremated remains had been interred since 2010.

The present and former incumbents and Churchwardens had maintained the policy of banning memorial plaques, a position that was supported by the DAC on the basis of a “floodgates” argument. However, the Petitioners contended that the position of plot in question lies in a row of memorials and between two plots marked by memorial stones; they suggested that the absence of a memorial makes the site of their parent’s/grandparent’s interment appear “vacant and unloved”. Whilst of the view that the policy of the PCC was reasonable and should normally be adhered to, the Chancellor felt there were exceptional circumstances in this case, and a Faculty was granted.

[No such problems were experienced when William Shakespeare was buried in the chancel of Holy Trinity, two days after his death on 23 April 1616 since this was a privilege concomitant with his position as lay rector, a position he acquired in 1605 for the sum of £440.]

[Link to Judgment] [Top of Page]

Re Bexleyheath Steeple Memorial Gardens [2015] Rochester Const Ct, John Gallagher Ch.

The context of the petition is not immediately apparent from the report of the judgment [2], which concerns the church’s consent for a solely municipal development that does not impact directly on the fabric or mission of Christchurch, Bexleyheath. A petition was sought on behalf of the Council [3] for improvements to the site of the former parish church, which includes the site of the town’s war memorial and also some remaining graves. Steeple Memorial Gardens (“the Gardens”) are sited at the location of the first church in Bexleyheath, the predecessor to the current Christ Church, whose PCC was unanimous in its support, as was the DAC.  Also located in the Gardens is the Town’s War Memorial and garden of remembrance, and the Royal British Legion indicated its support “as it affects the War Memorial”. The cost of the proposed works is estimated at £138,000 is to be met by the Bexley Council and the GLA [4].

The Council undertook extensive consultation and publication “over and above the normal public notice advertisements”.  There was a single objector who considered that the Gardens were “fine as they are” and “in these straightened times, public money would be best spent elsewhere”.  However, the Council observed that the proposed works are, in part, intended “to undo the negative effect of some of the work done in the past”. Having considered the evidence and information provided, the Chancellor was wholly satisfied that the proposed works were both appropriate and required, and directed that a Faculty is to issue, as sought, for all the works set out in the Petition.

[Link to Judgment] [Top of Page]

Re Chalcroft Lane Cemetery Bognor Regis [2015] Chichester Const Ct, Mark Hill Ch.

A petition was sought for the exhumation of the cremated remains of the petitioner’s late husband from Chalcraft Lane Cemetery in Bognor Regis, and for their re-interment in the churchyard of St Mary’s Church, Bognor Regis, near those of her late son. The petitioner also stated that it was her intention that, in due course, her ashes would also be laid to rest in St Mary’s churchyard. The Chancellor observed that this was a case concerning the portability of human remains rather than one of the establishment of a family grave, as in Re Blagdon Cemetery [2002 1Fam 299], and could find no special reason or circumstance to justify him overriding the normal presumption that burial should be final. Faculty refused.

[Link to judgment] [Top of Page]

[1] In two cases subsequent interments of the remains of the wives into the same plot as their husbands were also commemorated.

[2] This report of the judgments uses additional information from the website of London Borough of Bexley, (“the Council”).

[3] By the Head of Parks and Open Space, and the Parks Conservation and Community Officer.

[4] i.e.  a £40,000 grant from the Mayor of London’s “Pocket Park” scheme.

Cite this article as: David Pocklington, "Church courts catch-up, January 2015" in Law & Religion UK, 31 January 2015,

Clergy discipline, former clergy and parochial fees

This month, the Church of England issued new guidance, Crematorium funerals and the payment to, and receipt of fees by, the clergy, which seeks to clarify the legal position in relation to crematorium funerals and the payment to, and receipt of fees by, the clergy. A particular issues it addresses is that of clergy who do not hold office (whether because they are retired or otherwise) and who purport to conduct funerals on a “freelance basis”.

Not entirely unconnected with this new guidance was a complaint under the Clergy Discipline Measure 2003 brought by The Venerable Peter Rouch against The Reverend Dr Andrew Hawthorne, primarily in relation to his retention of parochial fees for services at which he has officiated, viz. Continue reading

Luxembourg moves towards further separation of religion and the state

On 26 January an agreement was signed between Luxembourg’s faith groups and the Government which reorganises the relationship between church and state. The funding agreement, which is worth 8.3 million euros in 2015, will have an impact on most groups; but the greatest impact will be felt by the Roman Catholic Church.

Luxembourg does not have an Established Church; and Articles 19 & 20 of the Constitution guarantee freedom of religion and of public worship and declare that no-one may be obliged to participate in the acts and ceremonies of a religion or to observe its days of rest. However, Article 106 provides that “The salaries and pensions of ministers of religion shall be borne by the State and regulated by the law”.  Continue reading

General election non-party campaigning: reporting and record keeping

In our post Blogging, campaigning and the General Election we indicated that by the end of 2014 a handful of secular charities had decided to register under the provisions of the Transparency of Lobbying, (etc) Act 2014¸ in addition to two religious ones: The Salvation Army and Britain Yearly Meeting of the Religious Society of Friends (but see Comments, below). We also suggested that more might possibly follow suit since the obligation to register within the regulated period only ends on Thursday 7 May 2015, the day of the general election.

On 23 January, the Electoral Commission circulated its 13th update on the rules on non-party campaigning which provided a reminder about pre-poll reporting and on record keeping. Although election day marks the end of the regulated period, this is subject to the caveat highlighted in the Electoral Commission Guidance Registering as a non-party campaigner which states [page 5]:

“If you are running a ‘general’ campaign … and you spend or plan to spend more than £20,000 in England or £10,000 in any of Scotland, Wales or Northern Ireland on ‘regulated campaign activity’ … during a regulated period, you must register … as a ‘registered non-party campaigner’.

You can register … at any time before or during a regulated period, but you must register … before you spend more than these amounts on regulated campaign activity during a regulated period.”

Likewise, there are requirements relating to the reporting of donations received during the regulated period, and these are summarized in the Commission’s guidance on pre-poll reporting, below. In view of the demands of pre-poll reporting and the penalties associated with registration and reporting, the timing of a decision to register as a non-party campaigner is of substantial importance to a body falling within the regulations. This post provides a brief recap of the criteria for registering as a non-party campaigner, and then considers the requirements imposed on registered campaigners by pre-poll reporting. Continue reading

Rt Revd Libby Lane consecrated at York Minster

This afternoon, the Church of England issued the following Press Release

“Rt Revd Libby Lane consecrated at York Minster

26 January 2015

The Rt Revd Libby Lane has been consecrated as the first female bishop in the Church of England in a packed service at York Minster today attended by more than 100 bishops from the Church of England and women bishops from across the Anglican Communion.

In a statement shortly after being consecrated, Bishop Libby said she had been encouraged by the thousands of messages of support she has received since the news of her appointment was announced. She said: Continue reading

Of kirpans, turbans, detention centres and the Home Office

Maria Strauss recently posted on the press report about the Sikh defence solicitor who sued the MoJ for religious discrimination after being refused admission to HMP Belmarsh because his turban was held together with pins. The MoJ settled before the case came to trial.

Hard on the heels of this comes the news that the Home Office has updated the Detention Services Order dealing with search procedures, following  an incident in which Gurpreet Singh Johal, a trainee solicitor at Glasgow law firm Bilkus & Boyle and a baptised Sikh, was told that he would need to remove his kirpan in order to be allowed entry to a detention centre to see a client. Continue reading

Religion and Law round-up – 25th January

Although the “zombie Parliament” had time to progress some religion law, it’s been a very bad week for the DCLG and a somewhat mixed one for the Archbishop of York

Progress of legislation

The latest claims that the coalition government’s Fixed-term Parliaments Act 2011 had created a “zombie Parliament” came from Baroness Boothroyd, Commons Speaker between 1992 and 2000, who referred to it is as “an act of irresponsibility” that had led to MPs sitting around waiting for the election.  The BBC states that MPs sat for just 44% of weekdays over the past year, and only 11 new bills have been introduced in this Parliamentary session – the second lowest in recent history[1]. During this week, however, there has been progress on a number of items of religion law.

On 16 January the Local Government (Religious etc. Observances) Bill, a private Member’s bill introduced with tacit Government support that aims to put beyond doubt the power of local councils to begin meetings with prayer, had a fairly brief report stage and third reading in the Commons. No amendments were made and it now goes to the Lords.

On 19 January the Lords Spiritual (Women) Bill went through all its Commons stages in one day and was sent to the Lords: the Hansard report of the debate starts here. The Bill is due to have its second reading in the Lords on 12 February.

In the House of Lords, three Church Measures presented for Royal Assent were considered on 22 January – Care of Churches and Ecclesiastical Jurisdiction (Amendment) Measure; Ecclesiastical Property Measure; and Church of England Pensions (Amendment) Measure. There were accepted by the House and now proceed to the House of Commons for consideration.

Department of Communities and Local Government

In terms of its stated policy “Bringing people together in strong, united communities”, DCLG has not had a good week. Continue reading