When asked by an expert in the law, ‘And who is my neighbour?’, Jesus answered with the parable of the good Samaritan (Luke 10:25–37). This was a radically inclusive answer: your neighbour could be anyone. By contrast, a priest who asks an ecclesiastical lawyer ‘and who is my parishioner?’ may be given a far less clear or satisfying answer.
Parishes are the basic building blocks of the Church of England, dividing the country into around 12,300 units.Footnote 2 The incumbent of each parish (usually styled ‘vicar’ or ‘rector’) shares with the diocesan bishop a ‘cure of souls’: the pastoral responsibility to care for every parishioner. Being able to identify one's own parishioners is not merely of practical benefit. All parishioners, regardless of faith, possess certain rights at common law, including the right to be married in the parish church and to be buried in its churchyard if there is room.Footnote 3
An incumbent's parishioner is someone who resides in their parish.Footnote 4 Yet this raises another question: what does it mean to reside in a parish? The answer matters most in relation to the right to burial in the parish churchyard.Footnote 5 As Newsom Ch explains in Re West Pennard Churchyard, there are five ways to secure a burial space:
i. Every parishioner has a common law right to be buried in the parish churchyard unless it is closed;
ii. This common law right extends to anyone who dies in the parish;
iii. By statute, the right also extends to people on the parish's electoral roll;Footnote 6
iv. Anyone without a right under (i)–(iii) must secure the consent of the incumbent,Footnote 7 who must have regard to any guidance given by their parochial church council (PCC);Footnote 8
v. The consistory courts have the discretion to grant a faculty so that a person may reserve a particular grave space for a period.Footnote 9
However, claiming a burial plot under (iv) or (v) will become increasingly rare. As churchyards fill up, the consistory courts will become less willing to reserve the remaining grave spaces, so fewer parishioners will be able to protect their burial rights should they leave the parish.Footnote 10 Similarly, fewer incumbents will agree to bury non-parishioners so as not to deprive those with a legal right to one of the remaining spaces.
Simultaneously, with greater reliance on residential care in later life, more people will be staying outside the parish they call ‘home’ when they die. If they were on the parish's electoral roll and were regular churchgoers before moving, they will often retain their burial rights in their ‘home’ parish under option (iii), as they may still be habitually worshipping there or may be able to show that they are prevented from doing so by illness or other sufficient cause.Footnote 11 However, if people not on the electoral roll want to be buried in their ‘home’ parish, their relatives may have to rely on option (i) by claiming that the deceased remained a parishioner until death and did not lose this status upon moving away. Consistory courts may have to rule on whether they are residents of their ‘home’ parish, the parish where the care home is situated, or both.
DEFINING RESIDENCY
When faced with such cases, what definition of residence should the consistory courts adopt? Recent consistory court cases offer little guidance. The courts could, therefore, borrow from other areas of ecclesiastical law. An Opinion on the Church Representation Rules published by the General Synod's Legal Advisory Commission contains one of the few statements that Synod has made on the meaning of ‘residence’. One of the three ways that a baptised lay person aged 16 or over can be added to a parish's electoral roll is by making a declaration that they are a member of the Church of England (or a church in communion with it) and that they are ‘resident in the parish’.Footnote 12 The commission opined that:
What amounts to residence is in each case a question of fact and degree, from which it follows that there must be many borderline cases. A person may have more than one residence if he or she has more than one residence which is of some permanence and can be described as a regular abode or home.Footnote 13
Thus, students may be enrolled at both their term-time and parental residences and a person may be enrolled in two parishes if they use one address during the week and another at weekends, but not if the address is a hotel.Footnote 14 The advantage of using this guidance for burial issues too is that it would promote consistency within ecclesiastical law. As people on the electoral roll have a statutory right to burial in the parish churchyard, adopting this guidance would ensure that the test of residence is the same for both the common law and statutory rights to burial.Footnote 15
Yet, the phrases the commission used – ‘some permanence’ and ‘regular abode or home’ – are open to interpretation. When does a stay become permanent or regular? Is permanence determined objectively or by reference to the intentions of the deceased? Questions like these are bread-and-butter issues for secular courts who deal regularly with residence issues and the consistory courts could draw from their precedents.Footnote 16 However, the recent Court of Arches case of St Giles Exhall Footnote 17 throws up a new perspective, with the judgment discussing the impact of the European Convention on Human Rights (ECHR) on church burials.
Drawing on that discussion, this comment argues that incumbents, when burying parishioners, are performing a public function and must act compatibly with Convention rights when doing so. This does not prohibit the Church of England from imposing residency requirements, but incumbents may not discriminate based on religion by being more lenient towards church members. Consequently, given that church members who leave the parish retain their burial rights, potentially for several months, incumbents and the consistory courts may have to show a similar latitude to parishioners not on the electoral roll.
WHY BURYING PARISHIONERS IS A PUBLIC FUNCTION
The Human Rights Act (HRA) 1998, section 6(1), provides that ‘It is unlawful for a public authority to act in a way that is incompatible with a Convention right.’ In Aston Cantlow v Wallbank,Footnote 18 the House of Lords explained what is meant by a ‘public authority’, identifying two types. ‘Core’ public authorities are bound by section 6(1) in all their actions. They usually possess special powers, receive public funding and are accountable to the public.Footnote 19 By contrast, ‘hybrid’ public authorities are entities that perform some public functions and are bound by the Convention rights only while exercising those functions.Footnote 20 In Aston Cantlow the court unanimously held that a PCC is not a core public authority, and a majority held that chancel repair liability is not a public function. However, in obiter remarks, Lord Nicholls of Birkenhead noted that ‘some of the emanations of the church discharge functions which may qualify as governmental’.Footnote 21 Lord Scott of Foscote agreed, noting that ‘The church is, therefore, a public building’ because, inter alia, ‘Members of other denominations, or even other religions are, if parishioners, entitled to burial in the parish churchyard.’Footnote 22
The consistory courts appear to acknowledge that these comments imply that burying parishioners is a public function. Thus Hill Ch states that the right to burial, ‘though highly personal to the individuals concerned, [has] a public element to [it]’.Footnote 23 It is a function performed by incumbents in consequence of their legal duties under Canon B 38, paragraph 2, to bury parishioners, as well as people who die in the parish and anyone on their parish's electoral roll.Footnote 24 Consequently, it is submitted that incumbents are hybrid public authorities bound by the ECHR.Footnote 25 While the consistory courts play no role in permitting or restricting the common law or statutory rights to burial,Footnote 26 they may clarify those rights so that they may be applied correctly in future.Footnote 27 In so doing, they too are bound by Convention rights, as they are public authorities as provided by the HRA 1998, section 6(3)(a).Footnote 28
THE RISK OF DISCRIMINATION
If the consistory courts adopt a tight definition of residence, incumbents risk indirectly discriminating based on religion in favour of church members. This discrimination may arise because, as mentioned above, members of the parish electoral roll have a statutory right to be buried in the parish churchyard.Footnote 29 All enrolled people must be baptised, aged 16 or over, and a member of the Church of England or a church in communion with it.Footnote 30 However, residents of the parish are exempt from the final requirement, which is to habitually attend public worship in the parish during the preceding six months.Footnote 31 Parishioners will only lose their eligibility if they leave the parish and fail to continue ‘to habitually attend public worship in the parish during any period of six months’ without sufficient cause, such as illness.Footnote 32
However, since January 2020, parishes may only remove names from the electoral roll during the annual revision of the roll which must be completed between 15 and 28 days before the Annual Parochial Church Meeting (APCM).Footnote 33 Consequently, as the statutory right to burial crystallises ‘at the date of the person's death’, enrolled people no longer resident in the parish thus retain their right to burial until the next revision of the roll.Footnote 34 Given that parishes have a five-month window in which to hold their APCM, this ‘grace period’ could be as short as no months or as long as 17.Footnote 35 By contrast, should the consistory courts adopt a strict definition of residency, non-enrolled parishioners – including all under-16s and clerks in holy orders – could lose their common law right to burial immediately upon leaving the parish.
One could argue that non-enrolled parishioners do not ‘lose’ their right but merely ‘transfer’ it to a different parish. However, the right is not equally valuable in all parishes. It is of no use in a parish where the churchyard has been closed and it is of little comfort to people who leave the parish where their family members are buried and are unable to secure a faculty.
BURIAL AND THE CONVENTION RIGHTS
The impact of the ECHR on church burials was discussed by the Court of Arches in St Giles Exhall. The court considered two ways in which the Convention rights could be invoked. First, church burial issues could engage and interfere with a Convention right directly, most likely Article 8 (‘right to respect for private and family life’).Footnote 36 It is submitted that residency requirements per se do not engage the article. Article 8 exists only to protect ‘the private space, both physical and psychological’.Footnote 37 By contrast, a churchyard is a public space. Just as families mark graves with headstones ‘to make a public statement about their deceased relative’, choosing to bury the deceased in consecrated ground may be a public statement about their beliefs or affinity with the church or local area.Footnote 38 Even if Article 8 is engaged, it is unlikely that residency requirements per se violate the article. In Dödsbo v Sweden, the European Court of Human Rights (ECtHR) held that ‘States should be afforded a wide margin of appreciation’ in issues concerning exhumation and the sanctity of graves.Footnote 39 A similar margin may well be afforded in other burial matters.
Secondly, the circumstances could engage Article 14 (‘prohibition of discrimination’) because they discriminate based on religion.Footnote 40 Article 14 is a ‘parasitic right which only comes into play when a set of circumstances is within the “ambit” of one or more of the [other] Articles’.Footnote 41 To be within an article's ‘ambit’ is a far lower threshold than to ‘engage’ the article. Citing Smith v Lancashire Teaching Hospitals,Footnote 42 the Court of Arches held that burial issues were within the ambit of Article 8 because they had ‘more than [a] merely tenuous’ link with the article.Footnote 43 The court did not explain well what this link was. Fortunately, the link has been found in many previous domestic and Strasbourg cases. In Drašković v Montenegro, the ECtHR summarised that Article 8 ‘may, in principle, be invoked by relatives in relation to disputes that arise regarding burials and other funeral arrangements’.Footnote 44 Cranston J in R (Ghai) v Newcastle City Council reached a similar conclusion.Footnote 45
The next step is to identify if the circumstances constitute discrimination under Article 14. The Court of Arches adopted the ECtHR's interpretation of Article 14 in Carson v UK:Footnote 46
in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations … Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.Footnote 47
A strict definition of residency could easily give rise to a difference in treatment based on religion. Two people, one on the electoral roll, one not, die outside the parish. Neither are habitual attendees of the church concerned. Until the electoral roll is next revised, the former has a right to be buried in the old parish but the latter does not. While this disadvantages non-enrolled parishioners regardless of their religious beliefs, parishioners cannot claim the variable ‘grace period’ unless they are baptised, aged 16 or over and lay members of the Church of England.
Is there an ‘objective and reasonable justification’ for this discrepancy? Given that membership of the Church of England is ‘self-defining’ (you are a member if you declare that you are one),Footnote 48 secular courts may question why membership should be the basis of special treatment when members who are parishioners may not have even attended public worship.Footnote 49 Additionally, the courts may view the discrimination as an unintended consequence of what is now the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, section 88(1).Footnote 50 The primary purpose of that provision was to extend the right to burial to enrolled non-parishioners, not to create different rights for enrolled and non-enrolled parishioners.
One could argue, however, that the ‘grace period’ does have a reasonable justification, namely that only revising the electoral roll once a year makes the rules ‘less burdensome to the clergy and laity in the parishes who have to operate them’.Footnote 51 However, it is submitted that reducing administrative burdens is not a reasonable justification for the discrepancy in treatment. Even if it is a legitimate aim, the test in Carson requires the means used to be proportionate to the aim sought.Footnote 52 When evaluating proportionality, the courts must consider ‘whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective’.Footnote 53 In this situation, the discrepancy could be removed simply and quickly if enrolled ex-parishioners had their eligibility for the roll on the date of their death re-evaluated, should their family seek to exercise the statutory right to burial.Footnote 54 Consequently, should the consistory courts adopt a strict definition of residency, it would violate Article 14 read with Article 8 if non-enrolled parishioners lost their right to burial immediately upon leaving the parish while enrolled parishioners maintained this right for a significant period of time.
How can incumbents and consistory courts avoid this outcome? The solution suggested above – re-evaluating the eligibility of enrolled ex-parishioners upon their death – is not permitted by law. Names may only be removed from the electoral roll ahead of the APCM and the deceased's right to burial will have already crystalised on the day of their death.Footnote 55 Consequently, incumbents have no option but to give full effect to the statutory right to burial, including the variable grace period. They will not act unlawfully when doing so.Footnote 56 Therefore, unless General Synod legislates to remove the discrepancy, it falls to the consistory courts to elaborate the common law. Under their duty to act compatibly with the ECHR,Footnote 57 they should adopt a more flexible definition of residence that enables non-enrolled people who have only recently left the parish to retain the right to be buried there.
CONCLUSION
What it means to be a parishioner in the context of the right to burial in the parish churchyard is more complex than might at first appear. The definition used could have significant consequences for people who spend their final few weeks away from the place that they typically called home. The Legal Advisory Commission's guidance, which emphasises permanence and regularity, provides a useful starting point for defining ‘residence’. However, a consequence of extending the right to burial to people on the electoral roll is that enrolled people who are also parishioners retain this right after they leave the parish until the electoral roll is revised, which could be up to 17 months away. Unless the courts recognise a similar ‘grace period’ for non-enrolled parishioners, incumbents will be indirectly discriminating based on religion, contrary to Article 14 of the ECHR.Footnote 58 As churchyards fill up and when questions of residence are eventually litigated in the consistory courts, chancellors should bear the Convention rights in mind.
