Burial – Disinterment – Licence – Religious order selling land where priest buried – Respondent secretary of state granting licence to disinter and relocate human remains – Appellant distant relative and objectors opposing licence – Whether respondent adopting wrong approach in law – Whether respondent making irrational decision – Whether decision disproportionate and breaching appellant’s human rights – Appeal dismissed
A 27-acre estate in Henley-on-Thames was purchased in the 1950s by a Roman Catholic Religious order and charitable institution and used as a school and as a retreat and conference centre. A Polish Roman Catholic priest who founded the school played a prominent part in the life of the community and was regarded as having almost saint-like status. Following his death in 1964, the priest was buried on the estate in accordance with his express wishes.
In 2008, the estate was deconsecrated and sold to a company. Two years later, the institution, supported by its head, applied to the respondent secretary of state, under section 25 of the Burial Act 1857, to disinter the priest’s remains and relocate them to the nearby cemetery where other members of the religious order had been buried. That application was opposed by 2,000 members of the Polish community including the priest’s first cousin once removed who was his nearest living relative, although they had never met. The objectors, including the three interested parties, contended that the priest’s remains should remain undisturbed so that they would be able to visit his grave.
The respondent granted the application, taking account of: the respondent’s practice, when considering applications under section 25 of the 1857 Act, of regarding as very important the wishes of the deceased’s next of kin and, in respect of members of religious orders, treating the head of the relevant order as next of kin; the fact that the removal of the priest’s remains would reunite him with his former brothers; and if the priest remained buried on the estate, visitors might not be able to visit his grave as the new owner was not obliged to permit access for that purpose and any access that might be granted could be restricted and withdrawn at any time. The appellant’s claim for judicial review of that decision was dismissed by the Divisional Court: [2011 EWHC 3078 (Admin). The appellant appealed, arguing that the respondent had: (i) adopted the wrong approach in law; (ii) reached an irrational decision; and (iii) reached a decision which was disproportionate and in breach of the appellant’s human rights contrary to articles 8 and 9 of the European Convention on Human Rights.
Held: The appeal was dismissed.
(1) Section 25 seemed to confer an unfettered discretion on the respondent to grant authority for disinterment of a body by means of a licence. It was, at least in the absence of special circumstances, inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters as being somehow implicitly limited or fettered. Unless there was some justification for doing so, it was for the respondent to decide on what grounds and in what circumstances to grant a licence. Apart from an obligation to act rationally and otherwise in accordance with the general law, there should be no operative fetter or presumption.
The general presumption of permanence adopted by consistory courts was plainly irrelevant to the exercise of the secular power in section 25. The consistory courts applied ecclesiastical law to graves in Anglican consecrated ground. The fact that their jurisdiction did not extend to other graves, all of which were governed by section 25, could not begin to justify interpreting the section by reference to the beliefs of the religion of the person buried in a particular grave.
(2) The respondent’s decision to grant a licence had not been irrational. An important reason to grant a licence was to enable those wishing to visit the priest’s grave to do so. In the absence of any contrary reason, the respondent’s practice appeared to be to grant a licence where it was requested by the next of kin for the purpose of reinterment elsewhere. That approach had not set the bar too low where the respondent had an unfettered discretion under section 25.
(3) As to whether the respondent’s decision was proportionate and the appellant’s human rights engaged, it was difficult to see how the appellant’s private life could fairly be said to be involved since she was a distant relative and had never met the priest. While the exhumation might offend the appellant’s and the objectors’ religious feelings, it would not affect their right to hold or manifest those beliefs. Even if both articles 8 and 9 were engaged, the decision was clearly proportionate since, as far as those articles were concerned, there were competing interests. In relation to article 8, there were the wishes of the head of the institution who in many ways had a stronger case than the claimant for being treated as the priest’s closest family member. As regards article 9, the appellant’s and objectors’ concerns had to be balanced against those whose religious beliefs appeared to favour the grant of the licence. In any event the respondent had taken account of those concerns and concluded that they should not prevail. In the light of the careful balancing exercise undertaken by the respondent and the reasons why he decided to grant the licence, the involvement of the relatively weak Convention rights invoked in this case could not begin to justify a court interfering with the decision.
Michael Fordham QC and Gordon Lee (instructed by Sutovic & Hartigan) appeared for the appellant; James Strachan (instructed by the Treasury Solicitor) appeared for the respondent; Oliver Hyams (instructed by Pothecary Witham Weld) appeared for the second interested party; The first and third interested parties appeared by written submissions only.
Eileen O’Grady, barrister
