In Re St Giles, Exhall  ECC Cov 1, Mrs Caroline Newey, the daughter of Margaret Keane, sought a faculty for a memorial on her mother’s grave . Mrs Keane and her husband had been born Ireland:
“They remained proud of their Irish heritage and were active in the work of the Gaelic Athletic Association [GAA] both in Coventry and nationally. This was an important public service to the Irish community in the United Kingdom and formed a major part of Mrs Keane’s life and of her work for others ”.
The petition sought a faculty for a memorial stone which would include the words “Inár gcroíthe go deo”: Irish Gaelic for “in our hearts forever” [3 & 4].
Eyre Ch expressed a provisional reservation as to the inclusion of an inscription in a language other than English without a translation. Mrs Newey disputed that the use of Irish was intended as a political statement. It was an important part of Mrs Keane’s Irish heritage and a “vehicle of symbolic value” – and Gaelic names would not be translated into English on a memorial . Eyre Ch concluded, however, that “regard must be had to the message which an inscription conveys to those who did not know the person being commemorated. An inscription which is incomprehensible to such persons is unlikely to be appropriate” . He noted that in St Peter & St Paul, Nutfield  Ecc Swk 1 Ellis Dep Ch had permitted the inclusion on a headstone of Tangnefedd, often found on memorials in Welsh churchyards, and concluded that its use was a “fitting memorial”  – but Eyre Ch distinguished that case .
“The situation would be likely to be wholly different if I were having to make a decision as to a memorial in the Irish Republic. However, the situation which I have to address is of a memorial in English-speaking Coventry. Should I permit an inscription which will be incomprehensible to almost all its readers? Not only would the message of the inscription not be understood but there is a risk of it being misunderstood. Given the passions and feelings connected with the use of Irish Gaelic, there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement. That is not appropriate, and it follows that the phrase “In ár gcroíthe go deo” must be accompanied by a translation which can be in a smaller font size” [16: emphasis added].
The grounds of appeal
Mrs Newey was granted permission to appeal to the Court of Arches on two grounds:
- Ground 1 – unjustifiable exercise of discretion / unfairness.
- Ground 2 – other compelling reasons, namely:
(i) the subject of non-English inscriptions on memorials has not been considered by the Arches Court or the Chancery Court;
(ii) England was a multi-ethnic and multi-cultural society; for a significant minority of families who choose burial in an Anglican churchyard, the English language might not be the natural or complete form of expression and / or of ceremonial expression;
(iii) the issue of non-English words on memorials was therefore likely to arise in future cases; and
(iv) questions of the approach to intelligibility and suitability of a Christian memorial in a Church of England churchyard were important matters of principle that the Court of Arches should consider, including in relation to the European Convention on Human Rights [3.2].
As we reported, the Dean announced after the hearing on 24 February that the Court had allowed Mrs Newey’s appeal. On 16 June the Court handed down its reserved judgment: Re St Giles Exhall  EACC 1.
Mrs Newey submitted that Eyre Ch’s reasoning had been so flawed as to be an unreasonable exercise of his discretion. Specifically:
- he had been wrong to assert that the inscription would be “incomprehensible” to those who did not know Margaret Keane;
- he had been wrong to conclude that the case of Re St Peter & St Paul, Nutfield was distinguishable;
- he had been wrong to conclude that the Irish phrase would be “unintelligible to all but a small minority of readers” in “English-speaking Coventry”; and
- his assertions that the untranslated phrase in Irish might be regarded as some form of slogan or political statement were “unsupported by any evidence and / or based on the outdated prejudiced notion that the Irish language is associated with Irish dissident republicanism” [4.1].
There was also an untranslated Welsh phrase on another memorial in Exhall churchyard: “Yn calonnau am byth cerddwch yn wasted a Duw” – “In our hearts forever. Always walk with God” [4.5] – and the PCC had raised no objections to the use of the Irish language [4.10].
For Mrs Newey, Ms Gallagher QC also submitted that any Churchyard Regulations and faculty decisions had to be Human Rights Act compliant, though her first Ground of Appeal was founded on the common law and her submission was that the decision of Eyre Ch had amounted to an unreasonable exercise of his discretion.
On behalf of the Intervener, Conradh na Gaeilge I Londain, Mr Moloney QC submitted that the decision had been directly discriminatory on grounds of the protected characteristics of race and/or ethnicity, contrary to the Equality Act 2010, inasmuch as the Appellant had been discriminated against by the decision that an Irish language inscription on her mother’s headstone had to be translated into English when there were untranslated inscriptions in other languages on other gravestones in the same graveyard and in other Church of England graveyards. He further submitted that this constituted discrimination in the provision of a public service [4.16 & 4.17] and that the prohibition on racial discrimination was “a peremptory norm of customary international law to which the Consistory Court and the Arches Court must have regard” [4.18]
As to Ground 2, it was submitted that Eyre Ch had acted in a manner inconsistent with the Articles 8 and / or 10 ECHR, alone and / or in conjunction with Article 14, in violation of s.6 Human Rights Act 1998 [5.1] and that none of his reasons for refusing to allow an Irish only inscription was a “legitimate aim” on which it would be permissible to found an interference with the Appellant’s rights under Articles 8 or 10, with a consequent violation of Article 14 [5.6 & 5.7]
The Dean of the Arches began like this:
“The church of Jesus Christ is arguably the most international, multi-ethnic, multi-cultural, multi-lingual body on the planet. That is one of its glories and strengths. Reflecting that noble reality in all its facets should be a universal ambition in all the church’s work and ministry, however challenging it may be upon occasion to implement it practically, even in respect of memorialisation of the dead and pastoral support to the bereaved [1.1].
As to the specific pointes raised in the appeal, on Ground 1:
- The Chancellor’s decision had been Wednesbury unreasonable [8.1 & 8.2]. The parish had not objected, nor had anyone else, on these (or any other) grounds and the petitioner had expressly stated that the family’s intentions were apolitical; further, “The sentiments expressed in the Judgment, which were not founded on evidence, seem to us to run so strongly counter to the reality of twenty first century Britain, a multi-cultural society with ready access to the internet as a source of instant translation, and the cultural make-up of Coventry, as to have crossed the boundary from the realm of a permissible exercise of discretion into the territory of unreasonableness in the legal sense of that term” [8.10].
- Though Eyre Ch had not been bound by Nutfield, “It is, however, significant that there is a Welsh language memorial in the churchyard at Exhall which includes longer phrases in a non-English language (one of them identical in meaning to In ár gcroíthe go deo); we presume that the Chancellor was unaware of this fact but it reinforces the unevidenced nature of the relevant reasoning and highlights the disproportionate result … the presence of Welsh, Latin and Hebrew inscriptions in the Exhall graveyard strengthens the impression that the decision in this case was disproportionate and wholly attributable to the flawed reasoning in paragraphs 16 and 17″ [8.11].
- Though the Public Sector Equality Duty under the Equality Act 2010 did not apply to the exercise of judicial functions, the consistory courts should generally give effect to that duty, in accordance with the remarks, obiter, of the Court of Arches in Re Holy Trinity, Eccleshall  3 WLR 1761 [8.13].
- The effect of the Chancellor’s decision had been to discriminate directly against the Appellant on the basis of her race [8.15].
The Court decided that the judgment was unreasonable, flawed in the legal sense and should not stand. It allowed the Appeal on Ground 1 [8.16].
As to Ground 2:
- The Court concluded that “the regulation of headstones in churchyards is an activity that is beyond the purview of Article 8 ECHR but in reaching this conclusion we are not saying that Ms Gallagher QC’s points about cultural identity go unaddressed” [10.17].
- The Court declined to rule on the applicability of Article 10 ECHR [10.19].
In a section intended to assist Chancellors, clergy and all others involved in administering the faculty jurisdiction in relation to memorials in consecrated churchyards, the Court then considered the broader question of what Chancellors should take into account and apply when making schemes of delegation (“Churchyard Regulations”) and when determining faculty petitions in relation inscriptions in languages other than English . After discussing the relevant case-law, it concluded as follows:
“11.8 We consider that the right approach is the merits-based one. Clearly, any Regulations in place for the parish or diocese concerned will be part of a matrix of relevant considerations, but we do not think that consideration of a faculty petition should start with a presumption against allowing a memorial outside the parameters of the Regulations, for the reasons articulated in the first instance judgments cited in paragraphs 11.5 and 11.6 above.
11.9 When framing Regulations for parishes or dioceses and when determining applications to clergy and faculty petitions to chancellors, it is essential to ensure that the Convention principles of fairness, equality and proportionality are followed. These principles accord with the approach of domestic law, as set out under Ground 1.”
Intelligibility was a relevant consideration, not least because it was important that the minister or chancellor being asked to approve an inscription should understand the proposed words so as to ensure that they met proper requirements in terms of conformity with the Christian faith and general suitability; but
“… a rule or presumption against expressions in non English languages as a matter of principle is likely to fall foul of Article 14 and not be justifiable within Articles 8 (2) and 10 (2) in the event that those Articles were engaged in a particular case … Abiding by the principles set out in Articles 8(2) and 10(2), however, should ensure that Regulations do not contravene Article 14 or Equality Act 2010. Similarly, these principles should set the tone for consideration of individual faculty petitions, which need to be considered in a spirit of alertness to avoiding discrimination, in accordance with the dictum of this Court in Eccleshall” [11.11].
Appeal allowed [12.1].