The open secret of the cancellation of the high-speed Manchester section of HS2 has at last been confirmed, and one of the questions now being asked is “What has the high speed train (HS2) ever done for us?” A number of our posts have considered different aspects of the project from the legal point of view, here, and below is a summary of some of the more important issues.

Background

The HS2 publication Designing and assuring the UK’s largest ever human remains reburial programme (17 September 2020) indicates that the work on burial grounds commenced prior to 2012 with desk-based investigations for the Phase One Environmental Statement. By 2020, HS2 had part-exhumed three Church of England burial grounds in addition to over 20 individual burial sites containing human remains dating from the Bronze Age onwards[1].

The prospect of religious groups becoming involved in the public square was raised in connection with the Transparency of Lobbying etc Bill in our posts here and here, and again in Charities, religious groups and pre-election lobbying, and after the Bill became law on 30 January 2014.

Development of the legislation

The Church of England became involved at an early stage when on 23 May 2013,  the Archbishops’ Council petitioned against the High Speed Rail (London – West Midlands) Bill, then before Parliament, since the proposed route for HS2 would pass through three burial grounds at Euston, Stoke Mandeville and Birmingham.  The Council expressed its concern that the human remains exhumed from these sites would not be “treated in a decent and reverent manner”. However, contrary to media reports, the Church made it clear that it was not opposing HS2 per se: what it is asking for is a technical change to the Bill.

On 5 July the High Speed Rail Committee Select Committee began consideration of petitions to the High Speed Rail (London – West London) Bill to which the St Pancras Parish Church Euston PCC had submitted a petition to the Committee that it was “specially and directly adversely affected by the whole Bill”. On 7 September oral evidence was presented on behalf of the PCC by the churchwarden and the vicar. Responding for the Department for Transport, James Strachan QC identified the four main topics raised by the petitioners as: memorial stones and the burial ground; trees, open spaces in general; and the potential temporary use of a play area.

Assurances relating to the matters of concern to the PCC had been made by a number of disparate groups – the statutory undertaker, Camden Council and the Archbishops’ Council; some of these, such as those relating to trees and their replacement, related more generally to the Borough of Camden. Subsequently, information on the proposed exhumations St James Gardens, Camden, was sought in a written question from Lord Framlingham, HL972.

Exhumation and retention of remains

In managing the exhumation and subsequent treatment of remains, HS2 acts 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 disapplies the ecclesiastical law relating to burial grounds, and detailed provisions fall within Schedule 20. As such the consistory courts were not involved in petitions relating to exhumations.

Schedule 20 includes inter alia provisions 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 provided 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).

Details of the burial grounds, the number of sets of remains removed by August 2020, and the estimated total number at each site are given in Table 1 – Burial Grounds, Phase 1 of the HS2 publication. This indicated that HS2’s legal Undertaking with the Archbishops’ Council of the Church of England requires HS2:

• to rebury, not to cremate, remains that have been removed, in a consecrated place;
• to consult the CofE on the process of work related to burial grounds;
• to provide a memorial at any reburial site; and
• to replace memorials removed with human remains with the deceased, if possible.

The Environmental Minimum Requirements (EMRs) which include the Heritage Memorandum, stipulated that HS2 carry out archaeological research on historically significant sites – which includes burial grounds over 100 years old. They also require that HS2 engage with Statutory stakeholders Historic England and relevant Local Authorities in the process of carrying out that work.

Reburial of remains

The results of the reburial programme as they stood in August 2020 are summarized in Table 2 – Burial Grounds, Phase 1. The HS2 publication notes that a close working relationship was established with the Archbishops’ Council (“a key Stakeholder”), and through them, with the Dioceses involved in the work. Reporting structures were in place with the General Register Office for reporting and confirming the reburial locations of all individuals removed by the Project, for families and researchers to access in the future through the National Archive.

Lord George Gordon – St James’s Garden

Two individuals buried in Church of England churchyards came to the attention of the public: Matthew Flinders (1774-1814), discussed below, and Lord George Gordon (1751-1793). Lord George Gordon, the British politician associated with the 1780 Gordon riots, and for his later conversion to Judaism, was also buried in St James’s Garden. Unlike Matthew Flinders, his remains were never found: “his burial plot at the far north-west end of St James’s Gardens, in the ‘Upper Ground’ was found to have been significantly disturbed by the building of a boiler house and diesel tank in the 1960s. This had removed several rows of burials and the funerary monuments buried with them, their final resting place unknown”. 

Captain Matthew Flinders

The post Captain Flinders navigates the law of burial was the third in a series covering the progress of the remains of Captain Flinders, from their 2019 discovery and a (coffin) breastplate bearing his name in the former burial ground of St James’ Church, Euston, to his interment under the North Aisle of St Mary and Holy Rood Church, Donington. These posts considered:

• the role of the nominated undertaker;
• secular and ecclesiastical legislation involved; and
• the consistory court considerations relating to his burial.

Although under secular legislation HS2 has the authority for the exhumation of Flinders’ remains and their subsequent retention, their re-interment in the Donington churchyard is governed by ecclesiastical law. As a consequence:

“following application to the Archbishops’ Council for removing Captain Flinders’ remains from the rest of the population from St James’s Gardens [in the Diocese of London], a response was received by the Flinders family that the [bishop] of London would have no objection to the move to [the Diocese of] Lincoln”.

In April 2020 the late Queen by Order in Council, pursuant to her powers under S1 Burials Act 1855, ordered that an exception be added to the Orders made in Council by Queen Victoria in the following terms:

“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, provided that no part of the coffin containing the body shall be at a depth less than one metre below the surface of the ground”.

In Re St Mary and the Holy Rood Donington [2020] ECC Lin 1, after reviewing Flinders’ achievements, the Bishop Ch. concluded that in his judgment, these could be regarded as “so exceptional, and his ties to Donington so clear, that the faculty for his burial in the church can properly be granted” [20].

Burials at St Mary’s Church, Stoke Mandeville

In November 2021, we reported on discoveries at St Mary’s Old Church, Stoke Mandeville. In 1866 the church ceased to be used when the new St Mary’s Church was built closer to the centre of the village, following which, it fell into disrepair as maintenance of the building declined. By 1966 the building was considered dangerous, and the Royal Engineers were brought in to demolish it. Nevertheless, the walls have survived to a height of about 5ft, and the floors is almost intact. This excellent preservation has allowed the team to reconstruct the evolution of the building.

The church burial ground was in use for 900 years with the last recorded interment in 1908; the site was de-consecrated in 1993. HS2 reported here:

“Before work on the burial ground began a virtual blessing was given by the Bishop of Buckingham. All remains will be reburied in a local spot to be determined by HS2, with a specially created monument to mark the location”.

and here:

“The team have also been carefully excavating the buried population at the Old St Mary’s Churchyard, examining what life would have been like for a rural population who lived in the area over the period the Norman church was in use. Evidence for funerary practices such as when a plate of salt was placed on the deceased have been discovered. Similar finds were uncovered by HS2 archaeologists excavating a city burial site in Birmingham”.

The BBC reported that around 3,000 bodies were being moved to a new burial site with a specially created monument; a final decision on where artefacts or the remains of the church itself will go has not yet been made.

Brookwood Cemetery

The majority of the reburials from St James’s burial ground will be in Brookwood Cemetery which was developed by the London Necropolis Company in 1849 with the intention of providing a new principal burial ground for London at a time when space for burial within city limits was at a premium.

In April 2020 architects were commissioned by HS2 to develop a substantial memorial in memory of all those whose human remains had been moved there from St James’s Gardens, Euston. This was considered in Re Brookwood Cemetery [2023] ECC Gui 2, in which Burns Ch granted a faculty, being satisfied of the appropriate nature of the design of the memorial, the landscaping and the proposed inscriptions.

Comment

Unlike the archaeological discoveries, there have been few, if any, benefits of High Speed Rail 2 in the area of “law and religion”. However, it has raised a number of issues on the  relationship between the ecclesiastical law of burial and the statutory legislation concerning large infrastructure projects.

Notes

[1]. In addition to the three Church of England burial grounds detailed in the document, the HS2 work included an archaeological investigation at Park Street burial ground in Birmingham. This was opened in 1810 as an overflow cemetery for St Martin-in-the-Bullring and remained open for only 63 years, closing to public burials in 1873. During the 12-month archaeological phase in 2019, 6,500 sets of human remains were excavated from the burial ground where the HS2 station is being built.