Ecclesiastical law

Month: July, 2015

Reformatio Legum Ecclesiasticarum: Of Martyrs and Mice

‘A Simpler Way of Reforming Church Legislation’ (General Synod Miscellaneous Paper 1103, issued 13th April 2015)

In the mid-20th century the cause of ecclesiastical law reform had a powerful supporter in the person of Archbishop Geoffrey Fisher, Archbishop of Canterbury from 1945 to 1961.  Fisher was not a lawyer, but as a former headmaster he possessed a natural appreciation of the importance of discipline.  As bishop, he had to contend with rebellious ritualists in the liturgical anarchy which followed Parliament’s rejection of the revised Prayer Book in the 1920s.

The commission that eventually produced the 1947 report The Canon Law of the Church of England was appointed before Fisher became Archbishop, but Fisher was apparently the driving force behind the revision of the canons of 1603.

The Archbishop’s interest in ecclesiastical law was not widely shared by his contemporaries.  One commentator was scornful: ‘An extraordinary feature of the Church of England in the post-war years was the fact that, faced … with its mission to the nation and … immense administrative problems, its representative bodies spent such an inordinate amount of time on the revision of the canon law …’ (Paul Welsby, A History of the Church of England 1945-80, OUP 1984, p.41).  Archbishop Fisher, he relates, ‘was probably never happier than when he was spending long hours in drafting canons in exact phraseology’ (p.42).  One dignitary apparently compared ‘canon law’ revision to rearranging the furniture when the house was on fire!

Despite his strong commitment, forceful personality and a lengthy tenure as Archbishop, Fisher’s efforts at law reform enjoyed only limited success.  The revised canons were not finalised until 1969, more than 20 years after the 1947 report and some years after Fisher’s departure from Lambeth Palace.  The late Owen Chadwick described the whole project as ‘a pregnancy that lasted for years and gave birth to a mouse’ (Michael Ramsey, OUP 1991, p.336).  (It must also be admitted that the Church in Wales never adopted Fisher’s canons, choosing to stick to the canons of 1603, and seems none the worse for this.)

Nor was Fisher the first Archbishop of Canterbury to be interested in law reform.  The Submission of the Clergy Act 1533 provided for the appointment of a royal commission with authority ‘to view, search and examine the said canons, constitutions and ordinances provincial and synodal heretofore made’ (s.2).  Archbishop Thomas Cranmer was put in charge of this commission.  Cranmer is now remembered for his unique contribution to Anglican liturgy, but he was also much occupied with the law.  Yet what his biographer calls ‘Cranmer’s cherished canon law revision project’, the reformatio legum ecclesiasticarum, never came to fruition (D MacCulloch, Thomas Cranmer, Yale 1996, p.500).  In 1640, on the eve of the civil war, Archbishop William Laud, another enthusiast for ecclesiastical discipline, promulged a new set of canons, but these were never recognised as lawful.

The 19th century litigation over public worship did nothing to enhance the prestige of ecclesiastical law.  Sir Robert Phillimore, the original author of Phillimore’s Ecclesiastical Law, strove gallantly to produce a workable, coherent liturgical law.  His judgment in the case of Martin v Mackonochie (1868) 2 Admiralty and Ecclesiastical Cases 116 is 130 pages long.  However, his formidable erudition was in vain.  As Dean of the Arches, he was liable to be overruled by the Privy Council.  He himself observed wryly that ‘The cross was holden to be lawful when on a chancel screen [but] unlawful when attached to the holy table [i.e the altar].  The result seems to be that a cross is lawful everywhere except on the holy table.  It is not easy to discover any principle on which [this law] rest[s]’ (Ecclesiastical Law, pp.732-3).

In 1874 Parliament passed the Public Worship Regulation Act, an attempt to enforce the 1662 regime of public worship on romanizing ritualists.  (The original Bill was apparently drafted by yet another Archbishop of Canterbury, Archibald Campbell Tait).  It failed.  Clergy who disdained the Act’s provisions were imprisoned, thereby becoming martyrs for the ritualist cause.  In 1906 a royal commission concluded that the 1662 regime was unenforceable.  Yet the present regime of public worship was not finally settled until the Worship and Doctrine Measure 1974, a full 100 years after the Public Worship Regulation Act.  Archbishop Michael Ramsey spent his last day in office trying (successfully) to persuade the House of Lords to approve the Measure.

The anarchic state of public worship regulation for such a long time made ecclesiastical law appear irrelevant at best and obstructive at worst.  It is not surprising that Archbishop Fisher’s efforts at law reform met with apathy and scepticism.

This depressing narrative may suggest that ecclesiastical law reform for its own sake is a hopeless cause.  If even Archbishops of Canterbury are unable to effect significant law reform, who can?

However, there is a glimmer of hope on the horizon.  The General Synod’s consultation paper, cited above, seems to envisage a new programme of law reform.  The Ecclesiastical Law Society has just issued its dignified Response to the consultation paper (published on its internet website 20th July 2015).

The Response laments the lack of interest in law reform hitherto.  The Society has been ‘a voice crying in the wilderness’ on this subject (para 2.3).  The Response relates, with a hint of wounded pride, that the Society proposed its own programme of law reform as long ago as 1987, but this was ignored by the ungrateful legislators.  Nevertheless, despite being thus ill-used for so many years, the Society magnanimously ‘renews its offer to place at the General Synod’s disposal its collective experience and the expertise of its members’.

The consultation paper refers to ‘The Presenting Problem‘ (singular), but it seems to identify two separate problems:

(1) the legislative procedure laid down by the Church of England Assembly (Powers) Act 1919 is too lengthy and onerous (cf paras 7-8) and

(2) the present volume of ecclesiastical legislation is too large and complex.

These problems are different in character, and should not be confused.  Problem (1) is procedural, and it is concerned with future lawmaking.  Problem (2), by contrast, concerns the substantive law, not procedure, and it is concerned with the past, with legislation that has already been made.

What are the proposed solutions to these two different problems?

(1) Most ecclesiastical legislation should in future be secondary legislation, in effect statutory instruments.  This means that it will no longer be subject to the scrutiny of the Ecclesiastical Committee of Parliament, as required by s.3 of the 1919 Act.

This is reasonable.  As the consultation paper points out, most secular legislation is now secondary legislation, so why should most ecclesiastical legislation be primary legislation?  We have suggested elsewhere that the Ecclesiastical Committee may have outlasted its usefulness (‘Does Parliament need an Ecclesiastical Committee?’, filed below).  The Committee’s essential function, which is safeguarding ‘the constitutional rights of all … subjects’ (s.3(3)) is now exercised by the High Court, which has power to ‘quash’ secondary legislation that is considered unconstitutional.

The Ecclesiastical Law Society gives cautious approval to the proposal, suggesting that secondary legislation may be appropriate in matters where the Church of England is ‘properly autonomous’, while retaining primary legislation for matters which engage Church – State relations and the rights of individuals (Response, para 3.4).

This distinction is important.  The 1919 Act permits a very broad scope to Church Measures.  Measures may legislate on anything ‘touching matters concerning the Church of England’ (recital).  If secondary legislation is to become the norm of ecclesiastical law, its permitted scope will have to be narrower than that.

(2) The consultation paper proposes ‘pruning and simplifying the Church’s over-elaborate statute book’ (para 12), by means of a statutory power similar to that conferred by the Legislative and Regulatory Reform Act 2006.  This Act empowers the (secular) government to amend both primary and secondary legislation by order.  An order may be made for one of two purposes:

(1) ‘removing or reducing any burden, or the overall burdens, resulting directly or indirectly for any person from any legislation’ (s.1, quoted at para 10) or

(2) simplifying the language of primary legislation so that it is more accessible or more easily understood.

The consultation paper’s advocacy of a burden-reducing power similar to (1) may be based on a careless reading of the 2006 Act.  The ‘persons’ referred to in the Act are private persons, not public authorities and officials.    The Act is intended to relieve citizens, not officials.  S.1(4) of the Act makes clear that an order ‘may not be made … in relation to any burden which affects only a Minister of the Crown or government department, unless it affects the Minister or department in the exercise of a regulatory function’.  The reference to a regulatory function means that an order may be made to relieve citizens of a burden imposed on them by a particular regulatory regime.  The Act is not intended to lighten the load on public authorities, only on persons whose activities are subject to regulation by those authorities.

It is argued that there is no proper scope for an order of this type in the Church.  Apart from the regulation of weddings and funerals (in particular the fees involved), it is hard to see how ecclesiastical legislation imposes any burden on ordinary churchgoers, let alone non-churchgoers.  Parishioners may be affected by pastoral reorganisation (e.g closure of a church or merger of parishes) or by works done to the parish church, but ecclesiastical law makes scrupulous provision for reorganisation and faculty proposals to be publicly advertised and objections to them considered.  The ‘burden’ of ecclesiastical legislation falls almost exclusively on ecclesiastical officials and authorities and their employees, i.e those involved in the Church’s governance and ministry.  Yet, as mentioned, the order under the 2006 Act does not apply to officials and authorities.

It may, of course, be appropriate to remove a particular burden on an ecclesiastical institution or office, or to alter its function in some way.  But this is a matter for ordinary legislation, not any special order.  As the Ecclesiastical Law Society points out, obsolete legislation could easily be repealed wholesale by an uncontroversial Revision Measure (Response, para 4.4).

It is also hard to accept to accept that ecclesiastical legislation is unduly complex and in need of a language-simplifying order similar to (2).  Some ecclesiastical legislation, perhaps even quite a lot of it, is undeniably boring to read, but that does not make it complex.  It is certainly easier to read than much secular law.  Reading ecclesiastical legislation requires a knowledge of its subject-matter (the institutions, ministry and property of the Church) and a degree of patience.  Ecclesiastical officeholders and employees should be expected to possess both, and, as mentioned, they are the only people who are likely to be directly affected by most ecclesiastical legislation.  And they can always call on free advice from the Church’s legal officers.

It may well be true that some ecclesiastical legislation is ‘over-elaborate’, but whose fault is that?  Since 1919, the Church has been free to legislate for itself, subject only to the veto of Parliament.  No external authority forces legislation on the Church.  Any difficulty is therefore entirely self-inflicted.  If the General Synod is troubled by the volume and detail of legislation, it should just approve less and simpler legislation.

Some provisions of Church Measures can indeed be irritatingly petty and pedantic.  There are seemingly endless requirements to obtain consent, consult, inform, consider representations, convene meetings.  Not much is left to the wisdom of common law, let alone common sense and common courtesy.  A casual reader might conclude that the draftsmen of ecclesiastical legislation must have a low opinion of the competence and integrity of its subjects!

On the other hand, the minuteness of ecclesiastical legislation may be a credit to synodical government.  The synodical process, and the ecclesiastical legislation which it has produced, may be admired for its inclusiveness, the stable balance of conflicting interests that it has maintained since 1919.

The legislative importance of a particular matter is a question of interest.  The synodical process is a dialogue between a number of interests.  Bishops seek effective powers of oversight.  Lesser clergy seek autonomy and security of tenure.  Persons of particular ‘churchmanship’ seek to express this in their preferred styles of worship, and under the guidance of like-minded clergy (and clergy of particular gender, of course).  Ecclesiastical judges, with the conservation lobby behind them, seek to maintain their control over dealings with Church property.  Cathedral chapters seek to preserve their mediaeval privileges.  The Church Commissioners seek to avoid excessive demands on their resources.  Diocesan authorities seek to manage their investments efficiently.  Legal advisers seek to minimise the risk of litigation.

The settlement of ecclesiastical law on the basis of interest may be another reason for Fisher’s limited success.  His project did not engage any practical vested interest in the Church, only a minority intellectual interest, so it had little momentum.  (Perhaps Cranmer’s project failed for the same reason.)

Modern ecclesiastical legislation may be praised for its pragmatism.  However, there is an unedifying contrast between its jealous micro-regulation of the Church’s property and interest, and its much briefer references to the Church’s religion.  The selection and training of candidates for the ordained ministry is almost entirely regulated by quasi-legislation, i.e informal guidelines and codes of practice, not by proper law.  The remarriage of divorced persons in church is also dealt with by quasi-legislation which contradicts the proper law forbidding such remarriage.  There is virtually no legislation concerning catechesis, or the use of the Bible in worship.

The legislators may reply that this is as it should be.  Legal regulation of religion should be minimal.  The proper function of ecclesiastical law, like secular law, is the regulation of worldly matters such as property, not other-worldly ones.  It is anachronistic and pre-modern to suggest that the separation of law and religion undermines both, and even separates man from God, and that human rights and human authority can only be understood correctly in the context of the rights and authority of God.


Ecclesiastical Burial: Disposal, Decency and Disturbance

This is an account of ecclesiastical law’s treatment of human remains.  It does not address all the legal rights, duties and functions connected with ecclesiastical burial.


There is a helpful summary of ecclesiastical burial rights in the case of West Pennard Churchyard (1991) 4 All England Reports 124:

(1)  the common law right of burial in the churchyard (or other ecclesiastical burial ground) extends only to resident parishioners, and to strangers who die in the parish.

(2)  The common law right is extended by the Miscellaneous Provisions Measure 1976 to persons on the parish electoral roll (s.6(1)).

(3)  Anyone else seeking burial in the churchyard may obtain permission from the incumbent, under s.6(2) of the 1976 Measure.  S.6(2) provides that the incumbent’s discretion is subject to ‘general guidance given by the parochial church council’ (PCC).

(4)  A person may acquire a right of burial by obtaining a reservation faculty.  This is ‘wholly in the judicial discretion of the [consistory] court’ (p.126).  Such a faculty may, exceptionally, be granted to a non-parishioner.

Rights of burial are obviously subject to the availability of space in the churchyard.  In West Pennard, the consistory court stated that ‘no churchyard is full and ripe for closure until all parts of it in which reburial is possible have been buried over again at least once’.

The Miscellaneous Provisions Measure 1992 confirms that a person who has a right of burial in a churchyard has the same right to burial of his cremated remains (s.3(1)).  It further provides that, although the common law right applies only to open churchyards, the burial of cremated ashes in a closed churchyard remains permissible under the authority of a faculty.  A faculty may also permit the designation of a particular area within a closed churchyard for the burial of cremated remains generally.

Apart from these general provisions, it is possible that a person may enjoy a special statutory right of burial.  For example, the Consecration of Churchyards Act 1867 empowers a donor of land which is added to a churchyard to reserve a right of burial over part of that land, not to exceed one-sixth of the total (s.9).  Any such reservation must be recorded on the instrument of consecration.

There is a common law right to burial in the churchyard, but no legal duty to be buried there.  Halsbury’s Laws states that ‘There is a duty to dispose decently of a dead body on the personal representatives or person lawfully in possession of the corpse’ (5th edition, vol 24 title Cremation and Burial, para 1103), but this does not require an ecclesiastical burial.

Halsbury’s Laws also affirms that ‘The general rule of common law still stands, that there is no property in a dead body’ (para 1105).  This rule applies to bodies buried on ecclesiastical premises.  The duty to dispose of the body gives to those responsible a right of possession of the corpse.  Once the corpse has been buried, however, this right of possession ceases, as the duty has been completed.

In Burial Board of St. Margaret’s Rochester v Thompson (1871) 40 Law Journal New Series 213, the Court of Common Pleas explained that ‘the [common] law [of ecclesiastical burial] was plain: dead Christian parishioners had a right

[1] to have burial within the consecrated burial-yard of the parish and

[2] to have the ordinary [burial] service of the Church performed over them’ (p.217).

The ecclesiastical duty was divided between the clergyman and the sexton (or verger): ‘the clergyman had to perform the religious part of the ceremony, the sexton the ministerial [part]’.  The ‘religious’ duty was to read the burial service.  The ‘ministerial’ duty was twofold, to (1) dig the grave and (2) toll the bell.

Thus common law conferred on the parishioner the right both to burial and to a burial service.  The only distinction was that the work was divided between two different ecclesiastical persons.

However, it was not possible to choose burial but reject a burial service (or vice versa).  Canon 68 of 1603 made clear that burial and the burial service had to be performed together.  The Court of the Arches added that ‘our Church knows no such indecency as putting a body in the consecrated ground without service being at the same time performed’ (Kemp v Wickes (1809) 161 English Reports 1320, at p.1330). In R v Coleridge (1819) 161 English Reports 1343, Chief Justice Abbott confirmed the secular courts’ acceptance that ‘the mode of burial is of ecclesiastical cognisance alone’.

The inseparability of the burial from the Anglican burial rite caused friction between the Established Church and other denominations, who wished to bury their departed adherents according to their own rites.  The ‘churchyards controversy’ was particularly acute in Wales.  The Welsh Church Act 1914 originally provided for the secularisation of all churchyards, by transferring them into the ownership and control of the local authorities (though many of them were later handed back to the Church, under the Welsh Church (Burial Grounds) Act 1945, because the local authorities could not afford to maintain them).

The older ecclesiastical law only permitted burial rites in the churchyard or other ecclesiastical burial ground.    As churchyards became closed to further burials in the 19th century, municipal cemeteries were opened. Cemeteries may include a part specially consecrated for Anglican use.  The consecrated part of a cemetery is treated as an ecclesiastical burial ground.

However, the link between ecclesiastical burial and ecclesiastical (or consecrated) ground has been weakened in modern times.  The Burial Laws Amendment Act 1880 eased the sectarian tensions by permitting burial of non-Anglicans in a churchyard ‘either without any religious service, or with [a] Christian and orderly service at the grave’ (s.6). Therefore non-Christian religious services are still not permitted.

Shortage of consecrated burial space may also necessitate ecclesiastical burial in unconsecrated ground.  The 1880 Act makes clear that burial rites may be used in unconsecrated ground (s.12).  Canon B38(5) of the revised canons provides that, on such occasions, the officiating minister must first bless the unconsecrated grave.

Crematoria are unconsecrated, of course, and often a considerable distance from the church and churchyard.  Canon B38(4) therefore provides that, in cremations, ‘the burial service may precede, accompany or follow the cremation, and may be held either in the church or at the crematorium’.

Canon B38(4) further provides that cremated ashes ‘should be interred or deposited, by a minister, in consecrated ground’.  Of course, the Church is not in a position to enforce this latter provision, since the minister cannot have possession or control of the ashes at the crematorium.  The deceased person’s family may prefer an unhallowed destination for the ashes (e.g a vase on the living room mantelpiece, or scattering in some place of sentimental importance).


Phillimore’s Ecclesiastical Law suggests that ‘[the] practice of praying for the dead seems to have been the true origin of churchyards’ (2nd ed, 1895, p.658).  By burying the corpses of deceased parishioners in the very centre of the parish, in and around the parish church, rather than in some discreet out of the way place, the mediaeval Catholic Church emphasised the communion between the living and the dead, the Church on earth and the metaphysical Church.  As Phillimore implies, it encouraged the parishioners to pray for the souls of the departed, and, of course, to remember their own mortality.  The old rule of canon law which denied burial in consecrated ground to the unbaptised, excommunicates and suicides made the point that such persons were outside the communion of the Church.

In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches made an unconvincing attempt to update the theological position.  It referred to ‘The general presumption of permanence [of burial] … [which] originates in the Christian theology of burial.  This theology underlies the consecration of land … for burials and … the [burial] rites of the Church of England …’ (pp.486-7).  For this reason ‘It is … very important that cemetery managers and funeral directors give a simple explanation to the bereaved about the difference between consecrated land (to which the theology of burial has application) and unconsecrated land’ (pp.487-8).

Yet this alleged ‘Christian theology’, with its assertion of a link between consecration and burial rites, is hard to reconcile with the modern ecclesiastical law discussed above, which has weakened the link between consecration and burial.  It is also hard to see how human remains in an unconsecrated municipal cemetery are treated any differently from those in a churchyard (let alone the consecrated part of the same municipal cemetery).  How is burial any less ‘permanent’ in unconsecrated ground than in consecrated ground?

The only principle apparent from the modern ecclesiastical law is that of decent treatment of the dead.  Decency is, at least to some extent, a matter of cultural value judgement.  Cremation was a controversial practice at first.  The Cremation Act 1902 gave clergy the right to refuse to officiate at crematoria (s.11). This provision was not repealed until as late as 1992, by the Miscellaneous Provisions Measure of that year.  However, Canon B38(3) now confirms that ‘cremation of a dead body is lawful in connection with Christian burial’.

The case of Caistor-on-Sea (1958) 1 Weekly Law Reports 309 concerned a proposal to reinter about 80 unidentifiable dead bodies in a communal grave.  The chancellor refused to grant a faculty for this work.  However, he noted that ‘Although communal burial may seem distasteful … yet that practice has long been followed, particularly in cases of natural disaster: it followed often … after heavy bombing raids during the war …’ (p.311).

Modern legislation makes clear that decent treatment of the dead is not inconsistent with public amenity.  Thus the Open Spaces Act 1906 empowers a local authority to hold a closed burial ground, including a closed churchyard, for ‘the enjoyment thereof by the public’ as an open space (s.10).  Sporting activities are allowed on an open space, subject to faculty.  It may also be permissible to use an open space as a carpark.

The Disused Burial Grounds Act 1884 permits building on a closed churchyard, but only for the purpose of ‘enlarging’ an adjoining church or chapel, and subject to faculty (s.3).  The Mission and Pastoral Measure 2011 provides that a statutory scheme under the Measure (not a faculty) may authorise building on burial grounds, but only if there have been no burials in the previous 50 years, or, if there have been more recent burials, no relative or personal representative objects (s.44(4)).  A very recent change in the law means that a faculty can now be granted for building on a disused burial ground, subject to the same conditions as for a statutory scheme, even if the building does not constitute an enlargement of the church (Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.18A, which was inserted by an Amendment Measure of 2015, s.4).

The burial of human remains is a different subject from the building of gravestones and other funerary monuments.  Gravestones are not inseparable from the remains that they commemorate.  The court observed in Holy Trinity Church, Freckleton (1995) 3 Weekly Law Reports 299 that ‘The right to be buried … does not include a right to erect a memorial’ (p.1590).  In St. James, Heywood (1982) 1 Weekly Law Reports 1289, the chancellor allowed that ‘gravestones do have a very special significance by being placed above burial places of those commemorated’ (p.1292).  However, he maintained that ‘this significance … probably is largely emotional’.  He pointed out that it is not uncommon for memorials to be erected inside a church to commemorate a person buried outside it.

Decent treatment of the dead should not be confused with delicacy to family feelings.  If a gravestone or monument is to be moved, this may cause distress to the deceased’s relatives (and for wholly understandable reasons), but nevertheless will not engage the principle of decent treatment of the deceased’s remains.

Gravestones and monuments, unlike remains, are property and therefore capable of legal ownership.


The account of ecclesiastical burial thus far suggests two points concerning the disturbance or exhumation of human remains:

(1) if there is no property in a dead body, it follows that relatives can have no right either to demand the exhumation of the body, or to veto its exhumation.  The body does not belong to them

(2) if exhumation is permitted too readily or casually, this is inconsistent with the principle of decent treatment of the dead.

In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches permitted the exhumation of a body for reburial in an unconsecrated municipal cemetery.  This decision was consistent with the modern ecclesiastical law discussed earlier (though it was inconsistent with the Court’s own theological musings on burial in consecrated ground).  Ecclesiastical burial is no longer confined to consecrated ground.  It is, however, necessary for the ecclesiastical court to be satisfied that the remains will be decently reinterred and cared for elsewhere.

The Court made the sensible point that, if there is a proposal to remove a body to the unconsecrated part of a local authority cemetery ‘it is reasonable for the consistory court to conclude … that the new grave will be cared for in a seemly manner and will be protected in this sense [of being cared for]’, though ‘Reinterment in unconsecrated ground which is not a local authority cemetery is a different matter.  No general inference of … suitability … can properly be drawn’ (p.486).

Cremated remains may be buried in caskets, and will therefore be capable of exhumation (Christ Church, Alsager (1999) Family 142).

Ecclesiastical exhumation cases may be divided into three categories

(1) public

(2) private (family)

(3) scientific interest.

(1) Public.  A reordering or development of a churchyard may well involve disturbance of remains buried therein.  Like other dealings with churches and churchyards, this is a matter for the faculty jurisdiction, though subject to s.3 of the Disused Burial Grounds Act 1884 mentioned earlier.

The Mission and Pastoral Measure 2011 provides for the disposal of human remains where a church is ‘closed for regular public worship’ (i.e made redundant) and where the building or land is given over to secular use (at s.78 and schedule 6).  The ecclesiastical court is not involved in this procedure, and no faculty is required. Instead the landowner (i.e the owner/lessee/licensee) of the land or building must advertise its intention to dispose of the remains before doing so.  Personal representatives and relatives must also be informed, if the interments are less than 25 years old.  Personal representatives and relatives (or the War Graves Commission, if appropriate) may claim the remains for reinterment elsewhere, or for cremation.  Otherwise the landowner must remove the remains and reinter them in land indicated by the bishop as ‘reasonably available’.  If the bishop gives no direction, the landowner/lessee must either reinter the remains in another burial ground, or cremate them.  All exhumations, reinterments and cremations are subject to any general directions given by the Secretary of State.

(2) Private faculties are often sought by relatives to remove a loved one’s remains to another location.  One difference between public and private exhumation cases is that, in the former, exhumation may cause distress if it is ordered, while in the latter, distress is likely if exhumation is refused.

Mistake is an obvious reason for ordering private exhumation.  If those involved in the burial were unaware of something which, had it been known at the time, would have caused them to dispose of the deceased differently, then the ecclesiastical court may order exhumation, rather as the High Court may set aside the action of a trustee for mistake.

Mark Hill refers to two unpleasant cases where exhumation was granted after an extra-marital affair and sexual abuse of a child, respectively, came to light after the funerals of the perpetrators (Ecclesiastical Law, 3rd edition (2007), p.268n).  When they discovered the truth, the relatives understandably did not care to be reminded of the perpetrators’ existence, nor to have the remains buried near those of other family members.

In Watson v Howard (also known as St Luke’s, Holbeach Hurn) (1990) 2 All England Reports 749, the consistory court ordered the exhumation of Mrs Howard’s remains from a plot that had been reserved, by faculty, to Mrs Watson.  The bereaved family had not been aware of Mrs Watson’s faculty.  However, Mrs Watson insisted on her legal priority, so Mrs Howard had to be moved elsewhere.

The Court of the Arches in Blagdon was concerned that private exhumations were being permitted too readily.  Although it did not limit exhumation to cases of mistake, it held that ‘a faculty for [private] exhumation will only be exceptionally granted’ (p.389).  It concluded sympathetically that the case before it was such an exception. The deceased had died suddenly, at a young age.  He had expressed no wish as to his place of burial.  There was no link between the deceased and the community where he was buried.  Moreover, his parents’ itinerant working circumstances had prevented them acquiring a permanent home at the time of his death.

Apart from this, the Court suggested that exhumation might be ordered if the medical condition of a bereaved relative demands it, though ‘any medical reasons … would have to be very powerful indeed … serious psychiatric or psychological problems … [linked to] the question of location of the grave …’ (p.490).  However, exhumation is unlikely to be permitted merely on account of a relative’s ‘advancing years and deteriorating health and change of place of residence’ (p.489).

(3) Scientific Interest.  Exhumations may be sought so that the corpse can be examined for reasons of historical or other scientific interest.  The leading case in this category is Holy Trinity, Bosham (2004) 2 Weekly Law Reports 833, which concerned remains alleged to be those of Harold II, the last Saxon King of England.  The case suggests that two criteria must be satisfied for a faculty to be granted:

(1) the subject of the investigation must be ‘a matter of great national, historical or other importance’ (p.845) and

(2) the investigation itself must hold out ‘the prospect of obtaining a meaningful result’ (p.846).

A faculty was refused.  The investigation of King Harold’s alleged remains satisfied criterion (1), but not (2).  The court accepted evidence that there would be no scientific means of establishing the identity of the remains, due to the passage of time.

The consistory court’s decision on King Harold was followed by the Court of the Arches in the St. Nicholas, Sevenoaks (2005) 1 Weekly Law Reports 1011, in which the Court refused to permit DNA testing on the remains of a man whose descendants believed him to be an illegitimate grandson of Queen Victoria.  However, exhumation was permitted in St. Mary Sledmere (2007) 1 Weekly Law Reports 1538, in favour of a professor of virology who wished to examine two bodies to carry out research into the influenza virus.

The court in Sledmere added a slight twist to the two Bosham criteria: ‘if public benefit is only in terms of increased historical knowledge … a high likelihood of success [is] required’ (p.1542).  However, if the case concerns ‘advances in treatment of dangerous diseases, then … an uncertain chance of success may suffice’.  In other words, the greater the importance of the investigation (criterion (1)) the easier it will be to satisfy criterion (2).  Medicine is more important than history.