Unprecedented Confusion: A Tribute to Chancellor Bursell

by Philip Jones

Re Sam Tai Chan (2016) Durham Consistory Court, Chancellor Bursell QC

The erudite and informative Law and Religion UK blog (to which this blog is ever indebted for both information and inspiration) has helpfully drawn attention to this recent faculty case.  The judgment appears on the website of the Ecclesiastical Law Association (accessed 12th September 2016).

The Worshipful Chancellor Bursell QC’s singular contribution to the public understanding of ecclesiastical law has been discussed in other posts (e.g ‘The Rubrics of the Book of Common Prayer’, and ‘Liturgy and the Faculty Jurisdiction’, filed under category ‘Liturgy and Law’).  This case is another egregious example of it.

The Chancellor permitted a Chinese lady to exhume the body of her late husband for reburial elsewhere.  She, at least, has reason to be grateful to him, though other less fortunate petitioners for exhumation may not have.

When deciding exhumation cases, consistory courts have for many years followed guidance given by the Court of the Arches in the case of Blagdon Cemetery (2002) 4 All England Reports 482, without any apparent difficulty or controversy.  The guidance was given because guidance given by the Chancery Court in the earlier case of Christ Church, Alsager (1998) 3 Weekly Law Reports 1394 was considered unsatisfactory.

The Chancery Court is the Archbishop of York‘s provincial court (Ecclesiastical Jurisdiction Measure 1963, s.1(2)(a)).  It is therefore the principal court of the northern province, the Province of York.  The Durham Consistory Court, over which Chancellor Bursell presides, is also in the northern province.  The Court of the Arches, of course, is in the Province of Canterbury, the southern province.

It was for this reason that the Worshipful Chancellor found it necessary to disturb the tranquil operation of the post-Blagdon faculty jurisdiction.  He acknowledged that his intervention might prove ‘inconvenient’ (cf para 12).  But the exhumation case raised ‘the question … as to how rules of precedent apply within the two provinces’ (para 8).

After a lengthy discussion of the subject of judicial precedent in the ecclesiastical courts, he concluded that ‘in so far as the northern province (sic) the Alsager test [i.e the guidance given by the Chancery Court in the Alsager case] still prevails’ (para 22).  Canterbury and York are separate provinces, and they remain separate ecclesiastical jurisdictions.  The Court of the Arches has no superiority over the Chancery Court.  This means that northern consistory courts are not ‘bound’ by the Blagdon guidance, only southern ones.  On the contrary, the northern courts are bound to follow the Alsager guidance.

The Chancellor modestly forbore to mention that he was himself a member of the Chancery Court that decided Alsager, and was therefore a co-author of the unsatisfactory guidance.  He seemed to resent the Court of the Arches’ criticism of the guidance (cf para 22)  (Which is understandable, of course).  He also had a dig at some fellow northern chancellors who meekly followed the Blagdon guidance instead of adhering to the Northern Precedent (paras 13 and 14).

It is argued that the Chancellor misunderstood the doctrine of judicial precedent.  A precedent is what the court decides, not what it says, in the particular case.  Stare decisis, not stare dictis.

What, exactly, did the Court of the Arches decide in Blagdon?  The Court granted an exhumation faculty because the consistory court, which had refused exhumation, ‘did not address this [case] specifically in terms of the bringing together of parents and child in a family grave … the exercise of the [consistory court’s] discretion was flawed in so far as it was based on an erroneous evaluation of the facts in this respect, and … in the way [it] treated the lapse of time as determinative’ (para 39).

The consistory court in Blagdon had refused exhumation because it was following, or trying to follow, the Alsager guidance.  The guidance had confused the chancellor and led him into error.  The Court of the Arches therefore issued its own guidance.

Thus the only discernible ‘precedents’ in Blagdon are that

(1) a long lapse of time between a burial and an exhumation request should not be determinative of an exhumation petition, and

(2) a discretionary decision should be set aside if based on an erroneous evaluation of facts.

The guidance given in Blagdon had nothing to do with the Court’s decision on the particular case.  The decision was merely the occasion for issuing the guidance.  The guidance was issued to assist consistory courts to avoid erroneous decisions, and hence avoid the need for future appeals.

Thus the Blagdon guidance did not engage the doctrine of judicial precedent.  The guidance is just that – guidance.  It does not ‘bind’ the consistory courts of either province.  It merely seeks to assist them to avoid errors and appeals.  Guidance is not binding precedent.

Chancellor Bursell was therefore not obliged to follow the Blagdon guidance, if he did not want to.  (Whether he was wise not to do so is quite another matter, of course.)  He was free to follow his own guidance in Alsager.  Indeed a chancellor in the southern province could choose to follow the Alsager guidance and ignore the Blagdon guidance.  Or a chancellor could choose to ignore both.

Bursell’s judgment reveals a second misunderstanding about precedent.  The doctrine of judicial precedent does not apply to the grant or refusal of faculties at all, because this is not a judicial function, even though it is exercised by courts and judges.  The grant or refusal of faculties (which are licences or permissions) is an administrative or pastoral function, not a judicial one.  It is an administrative discretion.  (See post ‘Doing Justice to Faculties’, filed below).  Administrative discretion should be exercised fairly and consistently.  Clear guidance will assist this.

It is true that Bursell is far from being alone in these confusions.  The doctrine of judicial precedent is widely misunderstood.  Court judgments are often read and interpreted as if they were legislation.  And ecclesiastical judges seem unable to grasp that the faculty jurisdiction is administrative, not judicial (just as they cannot grasp that ecclesiastical courts are governed by English law and not ‘canon law’).

However, Bursell’s judgment is of poor quality, even apart from its basic confusions.  It strongly suggests that Bursell used the case merely as a convenient peg on which to hang his flawed thesis on judicial precedent.  The facts of the case and the reasons for the granting the faculty are not adequately stated.

The Chinese lady’s husband died in 1978, but the Chancellor did not require an explanation of why exhumation was not sought until nearly 40 years later.  Lapse of time may not be determinative of an exhumation case, but it is still relevant to the case.  The lady sought exhumation because the original burial was ‘a mistake by virtue of mis-information’ (para 5), but the mistake and the mis-information are not described.

Moreover, the Chancellor did not grant the faculty on the basis of a mistake, but because ‘the different ethnic approach to burial within the Chinese Christian Church provides a good and proper reason for exhumation’ (para 27), but again this ‘ethnic approach’ is not described.  Yet non-Chinese Christians whose petitions for exhumation are refused might be interested to know what it is.

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