To what extent are municipal cemetery regulations obliged to cater for the various religious preferences and convictions of the families of the deceased? That was the core of the dispute in R (Ul Haq) v Walsall MBC [2019] EWHC 70 (Admin).

The background

In R (Ul Haq), the claimant, a practising Barelvi Muslim, challenged the lawfulness of Walsall Metropolitan Borough Council’s “Rules and Regulations in respect of Cemeteries and Crematoria” (the “Cemetery Policy”): specifically the provision in paragraph 6.9(g)) forbidding raised edgings around graves. Mr Ul Haq’s father had been a prominent member of the community and an imam; and after he had been buried at Streetly Cemetery (which is administered by Walsall MBC) the Council refused Mr Ul Haq permission to erect a four-inch raised marble edging around his father’s grave. His request arose from his religious belief that the grave was sacrosanct and that stepping on it would be an offensive, religiously proscribed act that had to be prevented. He sought an order quashing the Council’s policy and prohibiting it from enforcing the prohibition on the edging of Muslim graves.

Mr Ul Haq relied on the expert report of Shaykh Mohammed Yazdani Raza (Misbahi), who is a Hanafi jurist of the London Fatwa Council. Shaykh Raza stated in his report that “stepping on [a] grave … without a religious reason … is forbidden”: standing or walking over it, according to Islamic belief, “literally harms the inhabitant of the grave”. Edgings or a “sufficiently raised mound of soil above the grave” were necessary to prevent the grave from being walked upon (though he did not say that only edgings were required). That was especially so in relation to scholarly figures such as Mr Ul Haq’s father. His views were corroborated by Mufti Abdul Karim of the Ghamkol Sharif Mosque in Birmingham [8].

On behalf of the Council, Mr Stephen Billings, its Bereavement and Registration Services Manager, explained that the Council had opted to manage the cemetery in accordance with the “lawn principle” based on the Commonwealth War Graves Commission’s method of laying out burial plots: that graves should have a uniform appearance with rows of consecutive headstones, lawn areas in front of each memorial and without fences, barriers or other obstructions between the graves. One reason for the policy was that, as a matter of appearance, it gave an opportunity to contemplate in a quiet and (in general) a uniform setting. It also emphasised that “we are all equal in death” and did not draw attention to any particular grave because of that person’s status [14]. There were some exceptions to the lawn cemetery principle at Streetly; an older section was laid out in traditional churchyard style and, being historical, could not be changed. Different rules also applied to the section for the burial of babies and infants to reflect the particular emotional issues associated with their loss. However, the general appearance of a simple lawn area without barriers or obstructions remained. Individuals could also seek permission to use “wooden grave edgings flush with the ground”. In 2017, the Council had erected signs in English and Urdu advising visitors to avoid walking on the graves in the Muslim sections wherever possible [15].

Mr Ul Haq thought that none of those options was satisfactory and his requests for further accommodation had been rejected by the Council [15]. There had been “significant correspondence in order to resolve the issue without litigation”, but the parties had been unable to reach a compromise [16]. Mr Ul Haq was concerned about individuals or machines (such as lawnmowers) passing over his father’s grave, contrary to his beliefs – though he did not object to the use of a strimmer because he recognised that the grave needed to be maintained, which included cutting the grass [16]. He offered to try to ensure that the grave was properly maintained if the family’s requests were allowed – but that was refused. He then placed a temporary edging of domestic wire garden fencing around the grave, but that was removed by the Council [17].

Mr Ul Haq challenged the Council’s policy on four grounds: breach of Article 9 ECHR (freedom of thought, conscience and religion), breach of Article 8 ECHR (respect for private and family life). direct discrimination contrary to s.13 of the Equality Act 2010 and indirect discrimination contrary to s.19 of that Act [32].

The judgment

It was common ground that the principal issue arose under Article 9 ECHR [58]. There was no doubt that Mr Ul Haq had a sincere religious belief that people should not step onto his father’s grave. At an earlier stage of the proceedings, the Council had suggested that the belief in question was that there should be marble edging around the grave and that that was not required by Islam. During the course of the hearing, however, it was agreed that this first issue was common ground [60]. The Court was persuaded that Mr Ul Haq’s wish to have a marble edging around his father’s grave was sufficiently linked to the underlying belief to constitute a manifestation of that belief [61]. It was also a case in which the public authority had interfered with the Claimant’s rights under Article 9 ECHR [65 & 69].

As to justification, it was common ground that any interference with Article 9 rights was prescribed by law [70]. As to justification under Article 9(2), the Council clearly had one or more legitimate aims: protection of the rights of others, including the loved ones of people who had been buried in the Muslim section of the cemetery on the understanding that it would conform to the lawn cemetery principle. It also included the protection of the “lawn cemetery principle”, which was of importance not only to others who had a religious belief but to those who did not. There was also the legitimate aim of protecting the health and safety of visitors and staff, for example when carrying or using machinery to cut the grass and otherwise maintain the cemetery [71]. The means adopted by the Council had a rational connection to those legitimate aims [72].

There had been differing views from within the Muslim community itself, including at least some “that there should positively not be marble edging around graves of this type” [79]. The Council had been entitled within its margin of judgment

“to proceed in a sensitive fashion, trying as it must to respect different (and sometimes completely contradictory) religious views. It also had to take account of the views of those who are not Muslims and indeed may not have any faith at all, who value the lawn cemetery appearance of the area concerned” [79].

Concerns had been expressed by members of the public, both Muslim and non-Muslim, that “graves such as Mr Ul-Haq’s late father’s did not comply with the Cemetery Policy and they were upset about their appearance” [85] and it was not a sufficient answer to the concern about equality to say that others could have the sort of grave that they wished to see for their loved ones but should not deny what Mr Ul Haq wanted for his father: “This is because the appearance of one grave in a cemetery inevitably affects the perception of the cemetery which others have as well” [86]. On the facts, the Council had acted in a way which was justified under Article 9(2):

“We bear in mind, in particular, the following factors:

(1) The Defendant consulted widely on the revision of its policy in 2016. That policy had been in place for many years before that.

(2) The Defendant has been willing to accommodate the wishes of various parts of the Muslim community, in particular by permitting mounding although not marble edging around graves. This is important not only because it shows a willingness to be flexible on the part of the Defendant authority. It has shown that it is prepared to make reasonable accommodations to its normal policy in order to assist those Muslims who wish to mark their loved ones’ graves with a raised grave while maintaining the general appearance of a lawn cemetery…

(3) The Defendant is well placed with its experience and knowledge of the requirements of cemetery maintenance to form the judgement which it has as to the practicalities, including health and safety issues…

(4) Legitimate distinctions do exist from the children’s section of the cemetery” [96]

There had been no breach of Article 9 and it followed that there had been no breach of Article 8 [97]. The claim under the 2010 Act based on indirect discrimination on grounds of religion raised the same issues as those that arose under Article 9 and the Court rejected it for the same reasons [98].

As to the claim for direct discrimination on the ground of age – because the family of a dead baby or infant was treated differently from that of a dead adult [99] – the Council had shown that there was sufficient justification for the difference of treatment: in particular, because of the objective consideration that there was more space in the children’s sections of the cemetery. There were also different maintenance considerations. The Council was also entitled to reach that view because of the sensitive emotional matters to which Mr Billings had drawn attention in his evidence [108]. Accordingly, there had been no breach of the 2010 Act [109].

Claim dismissed [110]. Mr Ul Haq’s solicitor, Natalia Garcia, subsequently told The Times that he would be seeking permission to appeal.

Comment

The High Court judgment in R (Ul Haq) will be of interest to Diocesan Chancellors in the Church of England’s consistory courts, for while their jurisdiction is limited to consecrated burial grounds, many of the practical issues raised, such as the necessity for kerbing, as well as the impact of human rights legislation, are the same. Likewise, the High Court’s analysis of the consultation undertaken by Walsall MBC will provide useful guidelines when the introduction or modification of Churchyard Regulations is considered. The evidence on behalf of the Defendant Council came principally from three witness statements filed by its Bereavement and Registration Services Manager which demonstrated its professional approach in relation to the issues in question.

However, it is important to bear in mind that R (Ul Haq) was a judicial review of the decisions taken by Walsall MBC in establishing its municipal churchyard regulations, whereas consistory court hearings concern the application of ecclesiastical law – in which the onus is on the petitioners to convince the court to exercise its discretion. With regard to judicial review and human rights legislation, Walsall MBC “is plainly a public authority” [26], “Church of England ministers, PCCs and other Church bodies exercise certain functions which are similar to those of a public authority”. This is discussed further here.

Our post Churchyard Regulations – the practicalities of enforcement reviews the issues associated with the implementation of Churchyard Regulations; many of these were addressed in Re St Mary the Virgin Burghfield [2011] Oxford Cons Ct, with particular reference to the removal of unauthorized items including “edgings” such as “kerbs”. Restrictions on “unauthorized edging” is a common feature of many diocesan Churchyard Regulations and, like Walsall MBC’s requirement, this is primarily for ease of maintenance and overall aesthetics. Both judgments considered Articles 8 and 9 ECHR; in Re Burghfield, it was held that neither was engaged and in R (Ul Haq), that there was no breach of Article 9 and, consequently, no breach of Article 8, supra.

Frank Cranmer and David Pocklington

Cite this article as: Frank Cranmer and David Pocklington, “Municipal cemetery regulations and the High Court: Ul Haq” in Law & Religion UK, 23 January 2019, https://www.lawandreligionuk.com/2019/01/23/municipal-cemetery-regulations-and-the-high-court-ul-haq/#more-48030.