Exhumation by the “nominated undertaker”

On 17 October 2019, the Daily Mail carried the snappily-titled, but detailed headline Remains of Captain Matthew Flinders – the man credited with naming Australia – will be reburied in his home village after being found in London during HS2 dig. The story concerns the remains of Captain Flinders which were discovered during the excavation of St James’s burial ground for the new High Speed rail project; the article explains:

“Following a request by descendants of the Flinders family and the local community that he be returned to his home village of Donington, Lincolnshire, HS2 Ltd’s chief executive Mark Thurston has written to the family to say he can be buried there.”

Well, not quite, for although under secular legislation, as the “nominated undertaker” under the Act, HS2 has the authority for the exhumation of Flinders’ remains and their subsequent retention, re-interment in the Donington churchyard is governed by ecclesiastical law.

Background

The government Press Release The final voyage of Captain Matthew Flinders notes that HS2 archaeologists were able to identify his remains by the ornate lead name plate placed on top of his coffin.

“There is currently no set date for when his body will be reburied in at the church. However, the diocese of Lincoln has given planning consent to the reburial and, now HS2 have announced the news, the Parochial Church Council is expecting to work speedily to submit the details of a suitable memorial. A specialist team from HS2 will transfer the remains to the Diocese of Lincoln for safekeeping until further burial arrangements can be made. Details of which will be announced at a later stage by the diocese.”

Exhumation and retention of remains

HS2 is acting in its role as “nominated undertaker” as defined in s45 High Speed Rail (London – West Midlands) Act 2017 (“the Act”) and nominated in The High Speed Rail (London – West Midlands) (Nomination) Order 2017. The Act includes specific provisions in relation to burial grounds, and section 27 requires that:

(1) Nothing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise has 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 Act.
(2) Subsection (1) does not apply where the use of the land for that purpose would involve disturbing human remains which are buried in it, unless the remains and any monument to the deceased have been dealt with in accordance with Schedule 20.
(3) In this section and Schedule 20 “monument” includes a tombstone or other memorial; and references to a monument to a person are to a monument commemorating that person, whether alone or with any other person.

The detailed provisions fall within Schedule 20 which includes inter alia paragraphs on: Notice of removal of remains or monument; Removal of remains under licence; Removal of remains by nominated undertaker; Removal of monuments; Records; Discharge of functions by nominated undertaker; and Relatives and personal representatives.

No notification of the removal of the remains is required since they were buried more than 100 years ago (sub paragraph 1(3)(a) of the Schedule), and as such no one falls within the class of persons entitled to object (sub paragraph 4(11)(1) of the Schedule).

Re–interment

The Diocese of Lincoln Press Release states:

“In his will Captain Flinders makes his attachment to his native village very clear as he left instructions for the erection of four marble slabs in Donington parish church, on the north wall of the chancel, to commemorate his great grandfather, his grandfather, his father and himself. These slabs remain there today. The church also houses a display dedicated to Captain Flinders and one of the stained glass windows also commemorates his life.”

With regard to the interment of Flinders’ remains and the erection of a memorial, it states:

“His final resting place will be in at the Church of St Mary and the Holy Rood in Donington, near Spalding, where he was baptised, and where many members of his family are buried. There is currently no set date for when his body will be reburied at the church. However, the diocese of Lincoln has recommended that planning consent be given to the reburial and, now HS2 have announced the news, the Parochial Church Council is expecting to work speedily to submit the details of a suitable memorial. Until that point his remains will stay in the custody of HS2.”

The site for reburial is not immediately obvious from the above, but in his Comment below, Peter Collier points out:

“According to the BBC website the intention is to bury the remains in the church itself. The vicar is quoted as saying “Flinders’ remains would take pride of place inside the church in a corner dedicated to the explorer”.

He notes that as this church is 14th century, it predates the passing of the Public Health Act 1848 and so it will not be unlawful to bury the remains of Captain Flinders in the church (ref.1). The other option would have been in the churchyard; however, the Old Cemetery at St Mary’s, which contains six members of the Flinders family, is now “closed” under the terms of an Order in Council (ref. 2), but it is uncertain whether any of these would be relevant to the reinterment of Captain Flinders. However the New Cemetery was opened for more recent interments.

[Last updated, 29th October 2019]


References

[1]. With regard to prohibition of burials within or underneath churches in urban areas, David Smale in Davies’ Law of Burial, Cremation and Exhumation, 6th Edition, notes that in S83 Public Health Act 1848:

“It should be observed that, in special circumstances and subject to the grant of a the necessary Faculty, burials may still occur in churches in rural areas or where the church existed before 1848.

[With thanks to Peter Collier for this additonal clarification].

[2]. The “closure” of a cemetery by an Order in Council is not necessarily absolute as indicated by the general guidance of the Lincoln Diocese, Churchyards – Faculty Jurisdiction. This states:

Effects of Closure

No further coffin burials may take place in the churchyard, unless they fall within an exception specified in the closing order. It is common for a closing order to specify, by way of exception to the prohibition against further burials, that (a) burials may still take place in graves which have been reserved by Faculty, and (b) a body may be buried in the same grave as a relative, provided that following the second burial there will still be at least one metre of earth above the second coffin. When applying for a closing order, a Parochial Church Council should ask the Ministry of Justice to include these exceptions.

Cremated remains may continue to be buried in a closed churchyard, provided that either (a) a Faculty is obtained to authorise an interment, or (b) the cremated remains are to be buried in an area already set aside by Faculty for the interment of cremated remains.

The closed churchyard remains subject to the Faculty Jurisdiction, and the Parochial Church Council remains responsible for continuing to maintain the churchyard, unless and until it has transferred responsibility by giving notice under Section 215 of the Local Government Act 1972.”

A recent example of an Order in Council for the closure of a churchyard is St Edward The Confessor Churchyard, Burgess Hill.  

Cite this article as: David Pocklington, "Exhumation by the “nominated undertaker”" in Law & Religion UK, 19 October 2019, https://lawandreligionuk.com/2019/10/19/exhumation-without-church-or-home-office-approval/

10 thoughts on “Exhumation by the “nominated undertaker”

  1. Both the news item on the diocesan website and the Government press release [by High Speed Two (HS2) Ltd] state that “the diocese of Lincoln has given planning consent to the reburial.” I wasn’t aware that a diocese was a local planning authority. Presumably the reference should be to a faculty, but it would be interesting to know the terms of the consent and its particular legal basis.

  2. Presumably the Order in Council closing the churchyard directed that “burials shall be discontinued forthwith” …. subject to the exceptions allowing:- (a) burial in any existing earthen grave in the churchyard, the body of any member of the family of the person or persons previously buried in that grave, (b) where a right of burial has been previously reserved or (c) in any vault or walled grave in the churchyard.

    There is no indication that any of these circumstances apply here.

    There is no provision or principle, as I understand the statute and case law, that would permit a faculty to be granted other than (i) for the burial of ashes by discrete faculty for the case or (ii) the setting aside an area for the burial of cremated remains generally – Ecclesiastical Jurisdiction and Care of Churches Measure 2018 s88(3).

    There is no such provision for burying a body in a closed churchyard by faculty (even if you call it planning permission).

    • Many thanks for your helpful observations, Peter, following which I have made some changes to the text. However, as you note, it all depends upon the exact wording of the Order in Council.

      • The plot thickens….

        According to the BBC website – – the intention is to bury the remains in the church itself.

        The vicar is quoted as saying “Flinders’ remains would take pride of place inside the church in a corner dedicated to the explorer”.

        As the church is 14th century it predates the passing of the Public Health Act 1848 and so it will not be unlawful to bury the remains of Capt Flinders in the church.

        This will of course require a faculty. One might have hoped for a full judgment in such a case rather than just an on line authorisation.

    • To comment adversely on the Comms Unit would be a question of “the mote that is in thy brother’s eye” if one were to ignore use of “Home Office” rather than “MoJ” in the title of the post (now corrected)! dp

  3. Another church with a claim on his body would have been St Thomas, Old Charlton (Southwark diocese) where his wife Ann is buried.

  4. Pingback: Law and religion round-up – 27th October | Law & Religion UK

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