From the Euston excavation to a rural Lincolnshire church
“In January this year, archaeologists working on the HS2 project in Euston, London discovered the burial ground of the explorer as part of the archaeological works in advance of construction of the new high-speed terminus station. HS2 archaeologists were able to identify his remains by the ornate lead name plate placed on top of his coffin. 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”
This post reviews the secular and ecclesiastical legislation involved in the exhumation of Captain Flinders’ remains, discovered during the archaeological investigation at Euston Station, London, and their reburial in rural Lincolnshire. It updates an earlier post and incorporates the helpful Comments made and subsequent new information, and clarifies the legislative requirements involved.
Exhumation and retention of remains
In relation to the archaeological examination and exhumation of remains at the Euston burial site, HS2 is acting as the “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).
Additional guidance is provided in High Speed Two, Phase 2a, Information Paper E25: Burial Grounds. This includes:
“4.3 Where burial has occurred over 100 years ago, consideration will be given to the extent of archaeological investigation and recording works. The nature and extent of any archaeological investigation will be determined in discussion with Historic England, the Archbishops’ Council (Church of England), the relevant local authority and, where applicable, other religious authorities and the Commonwealth War Graves Commission. The Heritage Memorandum and draft Code of Construction Practice (CoCP) set out the framework and management of archaeological and heritage investigations on the Proposed Scheme (see ‘Framework for the Control of Impacts’, below).”
“5.5 HS2 Ltd’s archaeological approach to human remains and associated funerary monuments will be developed on a case by case basis and location specific investigation will be prepared to address the impact of the construction works, focusing on the research potential of the remains. The Heritage Memorandum sets out the Promoter’s commitment to the Historic Environment.”
Request for reburial of remains
Family descendants of the late Captain Flinders, aided by the Diocese of Lincoln, successfully applied to have the remains of the late Captain Flinders released to them, with a view to burial at the church of the Holy Rood, Donington. That involved an application to the Archbishops’ Council with whom the Secretary of State entered into a legal memorandum of understanding as regards exhumations of mortal remains from consecrated burial grounds.
Under Schedule 20 of the High Speed Rail (London West-Midlands) Act 2017 it would be the Secretary of State who makes the decision. Under the Memorandum, the Secretary of State will abide by the wishes of the diocesan bishop [i.e. London], advised by the Archbishops’ Council, as to what is to be done with such remains. The application was to show the exceptional circumstances which apply, to rebut the presumption that the Archbishops’ Council advise should apply in cases of exhumation in connection with the HS2 project, that the remains should be buried in the nearest available consecrated burial ground.
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.”
In his Comments on the earlier post, Peter Collier noted 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 inside the church. 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 the necessary Faculty, burials may still occur in churches in rural areas or where the church existed before 1848.
In Changing Churches – A practical guide to the faculty system, (Bloomsbury, London 2016), Charles Mynors states [13.7.6]:
“there is no legal bar to a faculty being granted for the disposal of cremated remains beneath the floor of a church. But such proposals are only rarely permitted – generally in the case of a former vicar and not always even then. The same is true of proposals to immure remains, that is, dispose of them within a wall” .
Consequently, in view of the reluctance for burials to be made within a church, there is a paucity of case law in this area. The Registry of the Lincoln diocese has indicated that there will now be a petition for faculty to allow for the burial in the church, which would be supported by the relevant PCC. The recommendation of the Diocesan Advisory Committee to the faculty has now been given and a petition is expected to be made in due course, following which the petition will be advertised for 28 days to allow for objections. L&RUK will not attempt to “second guess” the considerations of the consistory court, but will report the outcome of the petition when this becomes available.
The exhumation and re-interment of Captain Matthew Flinders involved no new legislative provisions or interpretation of the existing law. The (legal) interest which has been shown in the story arises from a somewhat singular combination of factors: exhumation during the development of the transport infrastructure where ecclesiastical legislation had been disapplied by statute ; high-level involvement between the Church and the nominated undertaker ; and a local determination of the irregular but licit reburial within a church . We will follow developments with interest.
Update, 5 April 2020
At the Privy Council on 3 April, Her Majesty was pleased to order that notwithstanding the discontinuance of burials in St Mary and Holy Rood Church and Churchyard, Donington, Lincolnshire, the exception to be added in that the body of Captain Matthew Flinders be interred under the North Aisle of St Mary and Holy Rood Church. The Daily Telegraph noted that this was the first ‘virtual’ Privy Council in history due to coronavirus; she was joined in the video call by four privy counsellors who gathered in a secure cabinet office briefing room.
Notes and References
. Mynors cites two cases, Re St Peter’s Folkestone  1 WLR 1283 and in Re Warner, Re All Saints, Stand (2007) 10 Ecc LJ 250; these are reviewed and compared with the instant case of Re St. George Chorley  ECC Bla 12, HH David Hodge QC, Deputy Chancellor.
. The legislation for most large infrastructure projects contains broadly similar provisions for the treatment of human remains – London Underground (Jubilee) Act 1993; Channel Tunnel Rail Link Act 1996; Crossrail Act 2008.
. The exhumation and treatment of the remains of Richard III was according to the conditions of a Licence issued to Leicester University by the Secretary of State for Justice, which was subject to an unsuccessful judicial review.
. During the Jubilee Lines Extension under the 1993 Act, although 647 sets of remains were removed from site of the Cistercian monastery of St Mary Stratford Langthorne during the development of the Stratford Market Depot of the Jubilee Line, neither the locations of the excavations nor the re-burials (at the Cistercian Mount St. Bernard Abbey, Leicestershire) were on consecrated ground.
With acknowledgements to Peter Collier, David Lamming and Ian Blaney for their helpful comments and information.