EXTRACT FROM REVISION COMMITTEE REPORT:
AMENDMENT OF THE DRAFT MEASURE IN RELATION TO HUMAN REMAINS IN
CATHEDRAL PRECINCTS
New clause 10(3)
1. Control over human remains in cathedral precincts,
such as it has been exercisable at all, has up to now been left
entirely to secular authorities, and in recent years the way in
which the Government has interpreted and applied relevant secular
controls has varied. Recently the Government Department responsible
(the Ministry of Justice) has taken the view that where human
remains were interred in land that was not immediately identifiable
on the surface as a 'place of burial', it was not able to grant
licences (and so to apply conditions to exhumations) under section
25 of the Burial Act 1857. Despite taking this view about the
application of the licensing requirements of that section, the
Ministry of Justice had nevertheless suggested that removal of
human remains in such circumstances would not necessarily be lawful.
2. The position of the Ministry of Justice has since
been revised, and it has said that the section 25 regime will
now be applied to most cases of exhumation that are not covered
by the faculty jurisdiction (which cathedrals are not). Despite
this change of approach, the Cathedral and Church Buildings Division
and the Cathedral Fabric Commission for England are of the view
that proposals for works affecting human remains in cathedral
precincts should be brought within ecclesiastical control. (Human
remains in churches, churchyards and consecrated cemeteries are
already subject to the faculty jurisdiction rather than secular
control.)
3. The Steering Committee therefore proposed the
insertion in the draft Measure of a new sub-clause 10(3), providing
for the amendment of the Care of Cathedrals Measure 1990 so as
to bring proposals for works which would materially affect human
remains in cathedral precincts within the controls contained in
that Measure. If the proposed new provisions were enacted, the
intention would be to ask the Ministry of Justice to amend the
secular legislation (by way of Legislative Reform Order), disapplying
it in all cases where ecclesiastical controls applied, and thus
avoiding 'dual control'. The Association of English Cathedrals
had been consulted about the changes and was content with what
was being proposed.
4. The Committee agreed to insert the new clause
10(3) and that clause 10, as amended, should stand part of the
draft Measure.
On behalf of the Committee
Philip Giddings (Deputy Chair)
June 2009
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