Our coverage of the exhumation of Richard III has highlighted some of the difficulties when applying section 25 of the Burial Act 1857, which states:
“25. Bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State.
Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial, without licence under the hand of one of Her Majesty’s Principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding level 1 on the standard scale”.
The problems that have been highlighted are not specific to the exhumation of Richard III’s remains but are of general application, and include:
– involvement of two regimes: the movement of a body from one place to another is subject to either secular or ecclesiastical legislation, depending upon whether the land is a “consecrated place of burial” or not, but in some cases the overlap between the two regimes results in unnecessary duplication. Decisions within the secular regime are made by civil servants whereas church courts determine issues regarding consecrated ground;
– interpretation (1), re-interment: where consecrated ground falls within the faculty jurisdiction of the Church of England, permission must be sought from the ecclesiastical court. However, although the exhumation of a body from one such consecrated place and its re-interment in another consecrated place may be authorized entirely within the faculty regime, if the body is re-interred in the same consecrated place, the Ministry of Justice is of the opinion that a section 25 licence is required for the re-interment ;
– interpretation (2), lacuna in ecclesiastical law: until recently, Cathedral precincts fell outwith the faculty regime, and as a consequence, their control came within the secular regime. Furthermore, the way in which the government interpreted and applied relevant secular controls has not been consistent ;
– section 25 licences: the movement of a body which is not buried in consecrated ground or which is buried within cathedral precincts, requires a “section 25 licence” issued on behalf of the Secretary of State. Authority to deal with non-contentious applications for “section 25 licences” is delegated to officials under the “Carltona” principle , although sensitive or complex cases are liable to be referred to Ministers for decision . The decisions made by the Ministry of Justice and the University of Leicester in relation to Richard III, both before and after the exhumation of his remains, are the subject of the Plantagenet Alliance petition for judicial review;
– interpretation (3), the term “in any place of burial”: In addition to its application to cathedral precincts, this scope of this term has been an issue in relation to the exhumation and examination of archaeological remains, an area that the Burial Act 1857 was not designed to regulate. The Ministry of Justice notes that it has not been possible to find a way to amend the 1857 Act without recourse to primary legislation, and it initially attempted to circumvent these provisions by reinterpreting the meaning of “in any place of burial”. However, the potential exposure of archaeologists to common law action, in the absence of the statutory protection of the Act, resulted in a further reinterpretation back to the original position .
The MoJ subsequently reconsidered the provisions of the Act, and concluded
“there is room to apply the provisions with more flexibility. This will allow licences to be granted with a wider range of disposal options for exhumed remains than re-burial alone, including the retention of remains indefinitely. Applications both for new exhumation licences, and for extensions or variations to existing licences, will be considered on this basis.”
– other lacunae: section 25 of the 1857 Act is dis-applied by a number of primary legislation, mainly dealing with major infrastructure projects, here. However, the legislation relating to coroners’ powers to order exhumation, paragraph 6, Schedule 5 to the Coroners and Justice Act 2009, does not make reference to the Act.
Nevertheless, in the case of a coroner seeking the exhumation of a body not buried in her area, R (HM Coroner for the Eastern District of London) v Secretary of State for Justice & Sutovic  EWHC 1974 (Admin), Mr Justice Tugendhat stated that regardless of whether a section 25 licence was granted, an exhumation from consecrated ground could not take place in the absence of an authorising faculty.;
– disinterment as common law offence: although the continuance of the common law offence was discussed in Rudewicz, R (on the application of) v Secretary of State for Justice & Ors  EWCA Civ 499, the point was neither fully argued nor decided. Although the learned judge doubted [para.21] the notion that
“where Parliament has legislated that a particular action constitutes a summary offence carrying a sentence of a scale fine, a previously established common law indictable offence with an unlimited sanction for precisely the same action can survive”,
the issue remains open, given his comment that it may be
“there are differences between the common law and statutory offences which justify the survival of the former even in situations where the latter would apply”.
Proposed changes to section 25
A primary concern of the Church of England has been to bring the treatment of human remains in cathedral precincts within its ecclesiastical law, and this is being undertaken by means of a two-stage process. The first stage was through section 10(3) of the Church of England (Miscellaneous Provisions) Measure 2010 which amended the Care of Cathedrals Measure 1990 by the addition of references to “human remains” in a number of places which formerly has referred only to “archaeological remains”. The 1990 measure is now subsumed in the Care of Cathedrals Measure 2011.
In 2009, the Legislative Committee of General Synod planned that following the introduction of these changes, the Ministry of Justice would be asked amend the secular legislation (by way of Legislative Reform Order), dis-applying it in all cases where ecclesiastical controls applied, and thus avoiding ‘dual control’. However, it now appears that this will be achieved by way of another Church Measure, and as we noted in an earlier post, at its York meeting in July, General Synod was presented with the draft of a further Church of England (Miscellaneous Provisions) Measure, GS 1866A, and the report of the Revision Committee, GS 1866Y-1877Y. GS 1866A includes as clause 2,
“2. For section 25 of the Burial Act 1857 there is substituted the following section—
25 Offence of removal of body from burial ground
(1) It is an offence for a body or any human remains which have been interred in a place of burial to be removed unless one of the conditions listed in subsection (2) is complied with.
(2) The conditions referred to in subsection (1) are—
(a) the body or remains is or are removed in accordance with a faculty granted by the court;
(b) the body or remains is or are removed in accordance with the approval of a proposal under the Care of Cathedrals Measure 2011 (No. 1) by the Cathedrals Fabric Commission for England or a fabric advisory committee;
(c) unless the body or remains is or are interred in land which is subject to the jurisdiction of the court or its or their removal requires or require the approval of a proposal under the Care of Cathedrals Measure 2011, the body or remains is or are removed under a licence from the Secretary of State and in accordance with any conditions attached to the licence.
(3) A person who removes a body or remains in contravention of subsections (1) and (2) is liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.
(4) In subsection (2)(a) and (c) “court” means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese.”
The current position, as reported here, states: “On 7 July 2013, Synod debated the Draft Church Of England (Miscellaneous Provisions) Measure, (GS 1866A), and Draft Amending Canon No. 31, (GS 1877A) and took note of the report, before considering the draft Measure and the draft Amending Canon clause by clause. A number of amendments consequential on earlier changes were accepted and the legislation now stands committed to the Steering Committee for final drafting”.
The present-day complexity of burial law and the doubtfulness of securing parliamentary time to debate the issues fully would suggest that a comprehensive revision is unlikely. Consequently, the use of a further “Miscellaneous Provision” Measure to deal with “uncontroversial matters that do not merit freestanding legislation” provides a pragmatic approach to some of the problems in this area being encountered by the Church. This use of ecclesiastical law to make changes to secular statutory law is permitted under section 3(6) Church of England Assembly (Powers) Act 1919, but since this power is restricted to matters concerning the Church , it is not possible for the new Measure to address all of the issues highlighted above.
However, within the limited scope of the modifications under Clause 2 of the draft Measure, most of the objectives will be achieved: with the exception of Oxford, all English Cathedrals will be now be included under section 25  , and duplication avoided where remains are reinterred in the same (or different) consecrated ground, such as for “lift and deepen” operations, as in Re West Norwood Cemetery . However, the draft as presented to Synod raises a few questions:
– Section 25(4) makes no reference to the Church’s appellate courts;
– The focus remains on exhumation, and as written, the re-interment of remains in cases of exhumation from “consecrated ground” and re-interment in “non-consecrated ground”, or vice versa, are not specifically addressed.
– The phrase “any place of burial” has proved problematic in the past, particularly in relation to archaeological excavations. In the proposed version, the use of “a place of burial” in section 25(1) expands the meaning of the term to include all burials covered by this provision, not just those in non-consecrated ground.
– By excluding the reference to consecrated places of burial, the new wording shifts the focus from the ecclesiastical status of the land to the authority of the body governing the exhumation of remains. However, despite the problems which frequently arise in the practical application of this term, “consecrated land” has become an accepted “term of use” in most local authority guidance;
– The sub-division of section 25 may require consequential amendments in related provisions.
A number of the problems that have arisen in the past have been the result of the interpretation of section by the Ministry of Justice, and following Royal Assent of the new Measure, it would be beneficial for new guidance to be issued jointly by the MoJ and the Church.