Ecclesiastical Committee Contents


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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