Health and Safety in the Ecclesiastical Courts
by Philip Jones
Until the mid-19th century the only public jurisdiction to which churches and churchyards were subject was that of the ecclesiastical courts. The 19th century saw the introduction of laws regulating the environment and public health, which were enforceable by secular authorities. Thus for the first time the ecclesiastical courts had to share their jurisdiction with secular authorities.
The confusion that this split jurisdiction caused, first apparent in the case of Lee v Hawtrey (1898) Probate 63, has still not been fully resolved. The ecclesiastical court which decided Lee was clearly reluctant to admit secular authority over Church property. In recent times, by contrast, a desire to co-operate with the secular authorities has resulted in the ecclesiastical courts seeking to do their job for them.
In St. Edburga’s, Abberton (1962) Probate 10 the Minister of Aviation asked the local consistory court to order the removal of a church spire, on the ground that it constituted a danger to low-flying aircraft. The parishioners did not object. However, the court refused a faculty. It considered that the safety risk was not great enough to justify the removal of the spire. The Aviation Minister appealed.
The Court of the Arches reviewed the evidence and concluded that the consistory court had been wrong about the risk to aircraft. It held that the court should have considered ‘both the likelihood of accident and also the degree of injury should an accident occur’ (p.17). The Minister’s appeal was allowed and the spire was removed.
Neither of the worshipful judges involved in the case seem to have appreciated the incongruity of a Church court deciding a question of aviation safety. Yet such a question was surely a matter for the secular authority to resolve, either by negotiation with the parishioners, whose spire it was, or by the use of compulsory powers.
In St. Mary’s, Woodkirk (1969) 1 Weekly Law Reports 1867, the local authority wished to use part of a churchyard for road-widening. A faculty was granted, even though it was opposed by both the vicar and the parochial church council, and involved the disturbance of no fewer than 191 graves.
The ecclesiastical court justified the faculty in a lengthy purple passage, which began ‘[The Church has] a mission … If the Church is ever to regain the imagination of the people and regain the place she once held in their affections, if she is ever again to be able to speak to people with that old authority … she must first be seen to be true to her mission and doing the job entrusted to her …’ (p.1875).
The court held that the essential question over the road-widening was ‘What is the duty of the Church?’ The road-widening was clearly in the public interest. There was ‘no feasible alternative’. It was therefore the Church’s duty to grant the faculty.
It may be true that the Church ought to co-operate in a development that serves the public interest. However, the ecclesiastical court’s analysis of the Church’s mission and duty was arguably somewhat flawed. The provision of roads and other amenities, however desirable they may be, is no part of the Church’s mission. The true question is not ‘What is the duty of the Church?’ but ‘What is the function of the Church?’.
The Church’s function is the administration of religion. Road-widening is the exclusive responsibility of the secular authorities, and they possess compulsory powers to support this.
Referring to a draconian alternative proposal to effect the road-widening, the ecclesiastical court stated that ‘To be the cause of dispossessing 26 families form their homes and adding [substantial cost] … would be wrong and cannot be reconciled with the duty of the Church towards mankind’ (p.1876).
Yet if this had happened, the secular authorities, not the Church, would have been the cause of it. The court seems to have overlooked the fact that the local authority could have purchased the churchyard land compulsorily (rather than the 26 houses), if the vicar and parishioners had been reluctant to part with it.
In St. Margaret’s, Hawes (2003) 1 Weekly Law Reports 2568, a faculty was sought for the installation of a telephone mast in the church tower. There was significant local opposition, encouraged by a fear that telephone masts radiate harmful emissions that can cause cancer etc.
There was no law regulating emissions from telephone masts. Thus the mast owner was bound only by the common law duty of care. The government’s advice to local planning authorities suggested that emissions posed no health risk, provided they complied with certain guidelines. Planning permission had been granted for the telephone mast in this case.
Notwithstanding the government guidance and the planning permission, the chancellor made a thorough investigation of the scientific evidence concerning the alleged health risk.
He held that ‘it is for the petitioners to satisfy the [ecclesiastical] court that the grant of a faculty will not give rise to a real, as opposed to a fanciful, risk to human health …’ (p.2571). His own task, he considered, was ‘to determine whether there is any substance in the fears that [emissions] … could present a risk’ (p.2574). Having reviewed the scientific evidence, the chancellor concluded that there was ‘no compelling evidence of real risk to health’ (p.2585).
The chancellor showed commendable diligence and thoroughness in investigating the alleged health risk and seeking to reassure the parishioners. However, it is argued that, like the ecclesiastical courts in the earlier cases, he failed to appreciate the nature of his jurisdiction. The Church is not responsible for public health and safety. In this case the secular authorities had approved the installation of the telephone mast and found no health risk. It was not for the Church to go behind the findings of the secular authorities on such a matter.
The case of Kerr (1894) Probate Division 284 arguably gives better guidance to the ecclesiastical courts on questions both of environmental law and environmental fact. Ironically this case was decided by Dr Tristram, who also decided Lee v Hawtrey. In Kerr a faculty was sought for the ‘immurement’ (i.e interment in a wall) in a parish church of an urn containing a deceased person’s ashes. At that time the practice of cremation was new and controversial.
The first question was whether the immurement of cremated remains in church was lawful. As public health became a growing concern in the 19th century, various Acts of Parliament forbade the burial of dead bodies beneath church floors. However, none of these Acts contemplated the burial of ashes, only of uncremated remains. The court was therefore satisfied that the proposed faculty would not contravene the secular law.
However, the court was also concerned that the interment of ashes, though not illegal, might be objectionable on sanitary grounds. It therefore directed a communication to the Home Secretary, who was then responsible for public health. The Home Secretary replied that he had no objection on sanitary grounds to the proposed faculty.
This case suggests that ecclesiastical courts should address matters of secular jurisdiction and ‘the environment’ as follows:
(1) where a question of law arises (is the interment of cremated ashes forbidden?) the ecclesiastical court must follow the interpretation of the secular courts or, if there is none, place its own interpretation on the secular law.
(2) where a question of fact arises (is the interment of cremated remains a health risk?) the ecclesiastical court should follow the guidance of the relevant secular authority.
(3) by implication, although the point did not arise in Kerr, the ecclesiastical court should seek its own expert evidence concerning health and safety only if no secular authority is able to advise it.