On 16 June the Court of Arches handed down its reserved judgment Re St Giles Exhall  EACC 1 on which we reported, here. This successful appeal was prompted by the decision in Re St Giles, Exhall  ECC Cov 1, where permission was denied for a faculty for a memorial stone to include the words “Inár gcroíthe go deo”: Irish Gaelic for “in our hearts forever”. Additionally, the Arches Court considered: “What factors and principles should Chancellors take into account and apply: (a) when making schemes of delegation (commonly known as “Churchyard Regulations”) and; (b) when determining faculty petitions, respectively, concerning inscriptions in languages other than English? [7.4]. The more general issues associated with “Churchyard Regulations” were also addressed, and this aspect of the judgment is reviewed below.
Unlike the Church in Wales which has centralized Churchyard Regulations, (possibly an unintended consequence of disestablishment*), those within the Church of England are diocese-based; in addition PCCs may adopt their own policies provided that these are consistent with the diocesan Regulations. These are mostly similar but not identical, and general guidance has been provided by ChurchCare on Memorials in Churchyards, (September 2016). However, Churchyard Regulations are locally determined and legal issues addressed through the relevant consistory court.
Judgments concerning churchyards have been discussed on this blog in a number of posts, here, and those specific to the application of Churchyard Regulations are:
- Churchyard Regulations – the practicalities of enforcement, which reviewed a number of cases, including Re St Mary the Virgin Burghfield  Oxford Const. Ct, Bursell Ch. (16 June 2016);
- Standardization of churchyard regulations, Re St John the Baptist Adel and St Michael Markington  ECC Lee 8, (13 September 2016); and
- Churchyard Regulations – an important development, New Churchyard Regulations in Oxford Diocese, (14 December 2016).
These and other judgments were considered by the Court of Arches, infra.
Re St Giles Exhall  EACC 1
General observations on Churchyard Regulations
The Court noted some of the more general aspects of Churchyard Regulations including:
- There is no statutory basis for the creation of Churchyard Regulations, [6.3];
- Most of the Regulations relating to written inscriptions focus on ensuring that content is not inimical to Christian doctrine and is in other ways seemly. None of the counsel argued that this was contrary to legal principle in a consecrated Christian churchyard [11.10].
- Very few of the Regulations take any particular line with regard to inscriptions in languages other than English [11.11].
Assistance chancellors, clergy and all others
The second ground for appeal (other compelling reasons) was: (i) the subject of non-English inscriptions on memorials has not been considered by the Arches Court or the Chancery Court; (ii) England is a multi-ethnic and multi-cultural society; for a significant minority of families who choose burial in an Anglican churchyard, the English language may not be the natural or complete form of expression and/or of ceremonial expression; (iii) the issue of non-English words on memorials is therefore likely to arise in future cases; (iv) questions of the approach to intelligibility and suitability of a Christian memorial in a Church of England churchyard are important matters of principle which the Court of Arches should consider, including in relation to the European Convention on Human Rights [3.2]. These were considered in paragraph 11:
“. What factors and principles should Chancellors take into account and apply: (a) when making schemes of delegation (commonly known as “Churchyard Regulations”) and; (b) when determining faculty petitions, respectively, concerning inscriptions in languages other than English?”
The Dean of the Arches pointed out;
“[11.13]. This section of our judgment is not essential to the determination that the Appeal be allowed but is intended to be of assistance to chancellors, clergy and all others involved in administering the faculty jurisdiction in relation to memorials in consecrated churchyards.”
She started by considering what “Churchyard Regulations” are, and how they should be used in decision-making. The Court agreed with and endorsed the statement of principle made by the Worshipful Mark Hill QC in Re St John the Baptist Adel and St Michael Markington  ECC Lee 8 that:
“ … [as a general rule, Churchyard Regulations] are an instrument of delegation pursuant to which the discretion to permit the introduction into churchyards of certain categories of memorial is devolved from the chancellor to the parish priest. Parochial clergy have delegated authority to allow memorials which fall within the certain specified categories; but they are perfectly at liberty, should they wish, to decline to permit a memorial even though it complies with the Regulations.
However, if a priest purports to permit the introduction of a memorial which does not comply with the Regulations, the permission will be a nullity. See by way of example, Re St Mary’s, Wath  ECC Lee 8, [reviewed here] where an order was made for the removal of kerbstones introduced without authority”.
The Court of Arches added the qualification [at 11.4]:
“…if a parish priest declines to permit a memorial which is in compliance with the Regulations in place for the churchyard or diocese, then he or she should have proper reasons for doing so and it is essential, in particular, not to infringe Article 14 by discriminating against particular applicants on any of the protected grounds”.
The Court considered the different approaches that had been adopted to determining faculty petitions in cases where there was a departure from the categories of memorial permitted by Churchyard Regulations, [11.5 to 11.9]. Some Dioceses treat Churchyard Regulations prescriptively rather than as instruments of delegation§; the former employ the terms such as a “standard memorial”, a departure from which requires ‘a powerful reason’ and should be confined to “cases which are truly exceptional”†.
The Arches Court considered [at 11.8] 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, and did 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].
It added [at 11.9] that 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 principles within the European Convention on Human Rights – fairness, equality and proportionality – are followed. These principles accord with the approach of domestic law, as set out under Ground 1, [“unjustifiable exercise of discretion / unfairness”, considered in paragraph [4.1 to 4.18].
The Court noted [6.4] “the caselaw discloses two competing approaches to applications for a faculty where there is non-compliance with relevant Churchyard Regulations, the one to require “exceptional”, “powerful” or “substantial” reasons for departure, the other simply to ask whether the proposed memorial is “suitable”. Hill Ch summarised the caselaw in Re St. John the Baptist Adel and St. Michael Markington  ECC Lee 8.
The Court stated that there were four cases which came closest to the subject matter of the Appeal, [10.8].
- Re St Mary the Virgin Burghfield  Oxford Const Ct, Bursell Ch.
- Ghai v Newcastle City Council  EWHC 978 (Admin)
- Jones v UK (Application no. 42639/04, 13 September 2005)
- R (Ul Haq) v Walsall Metropolitan Borough Council  EWHC 70 (Admin)
“[10.13] Drawing together what can be gleaned from these cases, we note the statement in Jones that there is no legal right as such to obtain any particular mode of funeral or attendant burial features. This accords with the domestic ecclesiastical caselaw. As Cranston J recognised in Ghai, however, the Jones statement does not provide an automatic answer to the Article 8 question and the public / private sphere judgment is nuanced and fact sensitive. On the facts in that case, he found that the claimant’s proposal stepped outside the private space and involved public activity.
[10.17] We conclude that the better view is that the regulation of headstones in churchyards is an activity that is beyond the purview of Article 8 but in reaching this conclusion we are not saying that Ms Gallagher QC’s points about cultural identity go unaddressed. Article 14, as we have already held, applies to the process of determination to secure recognition of cultural identities and protection of the characteristics of race, national origin, and minority or other status, amongst other things”.
The Dean concluded:
“[11.12] We suggest that chancellors review their Churchyard Regulations with these principles in mind. Specifically with regard to Coventry diocese, we note that the Regulations approved in November 2020 require all foreign language cases to be determined by the Chancellor. There may be justifiable procedural reasons for this provision but it should be reviewed, especially from the perspective of whether it amounts to indirect discrimination under EA 2010 or Article 14. The issue may be posed rhetorically: if, for example, a proposed inscription “Yr arglwydd yw fy mugail” or “Dominus pastor meus est” had to be the subject of a faculty petition, with the associated fee and delay, whereas a proposal for “The Lord is my shepherd” did not, how would this result be justifiable and proportionate, since they mean the same and are drawn from Scripture and Christian tradition?”
Paragraphs  and  are of particular importance in application of Churchyard Regulation since these identify the merits-based approach as being the correct one, and that a consideration of a faculty petition should not start with a presumption against allowing a memorial outwith the parameters of the Regulations; furthermore when framing Regulations, it is essential to ensure that the principles within the European Convention on Human Rights – fairness, equality and proportionality – are followed. The Court suggested that chancellors should review their Churchyard Regulations with these principles, and the Coventry diocese should review the requirement whereby foreign language cases were to be determined by the Chancellor, bearing in mind the issue of indirect discrimination under the Equality Act 2010 or Article 14 ECHR.
Postscript, 16 November 2021
This merits-based approach, on which the Arches Court cited Re St. John the Baptist Adel and St. Michael Markington  ECC Lee 8, supra, was applied in the judgment Re All Saints Darton  ECC Lee 6, in which the Worshipful Mark Hill QC granted a faculty to authorise kerbs to be placed around a grave. The installation of kerbs was outside the diocesan churchyards regulations, but in this particular case the grave concerned was surrounded by graves with kerbs, such that kerbs “‘appear to be the norm, rather than the exception”.
* Under the Welsh Church Act 1914, churchyards and burial grounds were transferred to secular authorities. These provisions were amended by the Welsh Church (Burial Grounds) Act 1945, and the Church in Wales again became responsible for the maintenance of most of its churchyards and burial grounds.
§ Re St John Whitchurch Hill  Oxford Const Ct; Re St John the Baptist Adel and St Michael Markington  ECC Lee 8; Re St Mary the Virgin Eccleston  ECC Bla 4; and Re St Mary, Kingswinford  1 WLR 927.