Municipal Cemeteries and Church Courts

by Philip Jones

Cemeteries Order 1977

The Church of England’s rights over municipal cemeteries (as distinct from ecclesiastical burial grounds) are now governed by the 1977 Order.

Article 5 of the Order permits the consecration of part of a cemetery by a Church of England bishop, provided that a ‘sufficient part’ is left unconsecrated and not set apart for any particular religious denomination.

The local burial authority may make an agreement with the Church for the management of the consecrated part of a cemetery (Article 3(3)).

The only direct reference to the faculty jurisdiction over cemeteries would seem to be at Article 13

‘Right of bishop to object to inscriptions … A bishop of the Church of England shall, as respects the consecrated part of any cemetery (including any chapel thereon), have the same rights of objecting to, and procuring the removal of, any inscription on a tombstone or other memorial placed or intended to be placed therein, as he has in the case of churches … and churchyards …’.

Article 2(2) defines ‘bishop’ as ‘ordinary authority’.  This suggests that the bishop’s rights under Article 13 may be exercised by the Church court, which is also an ordinary authority.

Article 14 suggests that the placing of a tombstone in a cemetery (as distinct from the inscription thereon) requires the permission of the burial authority, not the Church court.  It empowers the burial authority to sue the person responsible for the cost of removing an unauthorised tombstone. 

Ecclesiastical jurisdiction over consecrated municipal cemeteries was discussed in the case of Keynsham Cemetery (2003) 1 Weekly Law Reports 66 and by the Court of the Arches in Welford Road Cemetery (2007) 1 All England Reports 426.

The two cases had very similar facts.  The burial authorities laid flat a large number of gravestones in the consecrated parts of their cemeteries, in the reasonable belief that the gravestones were unsafe and might collapse, causing injury.  However, some relatives of the deceased persons objected to this action, and complained to the ecclesiastical court.

The burial authorities then sought confirmatory faculties for the work already done on the gravestones, and faculties for future work.  In seeking faculties, the burial authorities were, of course, conceding the jurisdiction of the ecclesiastical court.  In the end, faculties were granted in both cases, but subject to fairly demanding and expensive conditions.

In Keynsham, the chancellor had initial doubts as to whether he had jurisdiction over the burial authority.  He noted correctly that the 1977 Order ‘confer[s] upon the burial authority general powers of management and repair’ (p.70).  More particularly, the Order empowers the authority to ‘put and keep in order any … tombstone or other memorial’.  The chancellor even acknowledged that ‘these provisions … ostensibly authorise activities including the laying flat of a dangerous tombstone’.

However, the chancellor still concluded that he had jurisdiction.  The reason he gave was that the 1977 Order did not explicitly exclude or abolish his ‘inherent’ jurisdiction over consecrated land. 

This conclusion, obviously, owes much to deputy chancellor Newsom’s famous dictum in St. John’s Chelsea (1962) 2 All England Law Reports 850, that the mere act of consecration is sufficient to confer jurisdiction over the land consecrated.

In Welford Road, the Court of the Arches was free of any doubt as to its jurisdiction, but its reasoning was rather confused.  It held that ‘the faculty jurisdiction comes into play when works are proposed which may interfere with respectful treatment of the dead …’ (p.430).  Later, the Court suggested a faculty was necessary for the ‘protection’ of the burial authority against objections by the gravestone owners (p.431).

The flaws in Newsom’s dictum are discussed separately.  However, even if it could be accepted that the mere consecration of the cemetery conferred some sort of ecclesiastical jurisdiction, that jurisdiction is still subject to the provisions of the 1977 Order.  Ecclesiastical jurisdiction, whether it originates ‘inherently’ in common law or by the express grant of the landowner, is always subject to statute law, and the 1977 Order has statutory authority.

It was agreed in both Keynsham and Welford Road that the burial authorities had acted in the genuine and well-founded belief that the gravestones were in a dangerous condition.  They had not exceeded or abused their powers in any way.  They had complied with the provisions of the 1977 Order.

It is therefore hard to argue that a confirmatory faculty was required, even if an a priori common law ecclesiastical jurisdiction is conceded.  If the burial authorities were acting within their statutory legal rights, they did not require faculties.  A faculty is required only where there is no legal right.

However, it is argued that there is no a priori ecclesiastical jurisdiction over consecrated cemeteries, and that any ecclesiastical jurisdiction depends solely on the 1977 Order.

Article 13 makes clear that the faculty jurisdiction over cemeteries, such as it is, is limited to inscriptions on gravestones, nothing else.  The relatives of a deceased person cannot inscribe a gravestone without the Church’s permission.  If they do so, the Church court can require the inscription to be removed.

The purpose of Article 13 is to ensure that no inscriptions are allowed which are offensive to Anglican doctrine or sensibilities.  Article 13 harks back to a time when ‘low’ Churchmen took offence at Roman Catholic inscriptions inviting prayers for the departed soul, because of the implied doctrine of purgatory.

Neither Keynsham nor Welford Road engaged Article 13 at all.  They had nothing to do with inscriptions.  Moreover, they did not concern the actions of the relatives, but those of the burial authorities.  The relatives were complaining about the actions of the authorities.  However, the Article 13 jurisdiction is exercised only over relatives, not authorities.

Correctly understood, the 1977 Order makes clear that Parliament has entrusted the management of municipal cemeteries to the local authorities.  The ecclesiastical court has no responsibility to ‘protect’ either the local authority from complaints or indeed the remains of those buried in the cemetery.  Protection of the remains is the sole responsibility of the burial authority.

If the local authority exceeds or abuses its powers of management, relatives may complain to the High Court, or to an ombudsman.  They can also lobby the councillors or vote for a change of authority in local elections.  There is no reason for ecclesiastical courts to be involved in a dispute between them.