In McGuigan, Re Application for Judicial Review [2022] NIQB 38, Mrs McGuigan’s husband had been murdered in her presence on 13 August 2015 [4] and she wanted his remains to be exhumed and reinterred in the same grave as their daughter [2].

Where the exclusive rights to burial have been purchased, a grave cannot be opened without the owner’s permission [5]; and Mr McGuigan’s mother, the owner of the exclusive rights of burial in the plot in which he was buried, refused her consent [2]. She had previously refused her terminally-ill granddaughter’s request to be buried with her father [6]. The Department for Communities refused to authorise the exhumation, citing its Revised policy guidance on exhumations, and Mrs McGuigan challenged that policy.

At a preliminary hearing, it was argued for Mrs McGuigan that refusing to consent to the exhumation of her husband was in breach of her rights under Article 8 ECHR (respect for private and family life. It was also argued that the Department had erred in law by considering that the consent of the owner of the exclusive rights of burial was required before exhumation, save in exceptional circumstances, because that also was inconsistent with the requirements of Article 8 [7]. The proceedings were certified as raising a devolution issue within the meaning of s 10 1(c) Northern Ireland Act 1998: whether a Northern Ireland Department had failed to comply with any of the Convention rights [9].

The Department contended that it had carried out a proper balancing exercise and that it did not regard the application as “an exceptional case which would warrant overriding the private law rights of the grave owner” [30].

The Court was of the view that Convention rights were engaged in exhumation decisions because they might legitimately raise issues of rights to private and family life under Article 8 ECHR, “particularly regarding the determination of the resting place of the remains of a loved one” – though any interference might be justified under Article 8(2). Further, though not applicable in the present case, an exhumation decision might also engage Article 9 [24].

Rooney J rejected the Department’s contention that its balancing exercise undertaken was just that, and not, in reality, an “exceptionality test”:

“The respondent’s decision dated 18 August 2021 specifically states that ‘the Department’s policy on exhumations is that it is only in exceptional circumstances that the Department would give consent in the absence of agreement of the grave owner.’  If the focus of the policy is only on exceptional circumstances, then the test of exceptionality is not the same as the application of a test of proportionality” [32].

The 2021 policy did not provide details or examples of “exceptional circumstances” in the absence of agreement by a grave owner; and

“the respondent should at least specify its reasons for applying more weight to the owner of the exclusive rights of burial than the nearest surviving relative.  Furthermore, if the respondent intends to rely upon Article 8(2), it must specify each and every respect in which it is claimed that the interference was in accordance with the law, serves legitimate aims and is accordingly justified” [33].

Leave was granted for a full hearing of the challenge [34].