Nicola Rees 2010

The labyrinthine law of disposal of the dead: the complications, the complexities and the convention

This paper presents ongoing PhD research examining the legal framework, rules and regulations of the Church of England relating to disposal of the dead with some comparison with state regulation. The paper reviews the roles of the PCC and incumbent as regulators and policy makers in the churchyard. A key point in the research is establishing the functional public authority status of the PCC for s6(3)(b) and 6(5) Human Rights Act 1998 (HRA) (contra to finding of House of Lords in Wallbank litigation) by reference to the on-going case law usually linked to social housing and care homes for the elderly, and using tests developed by the courts. The paper encompasses discussion of the ‘victim’ defence (s7(7)) HRA 1998 to a finding of functional public authority; examination of the case law from the consistory courts in relation to burial regulations, particularly regarding epitaphs; and the case law in relation to exhumation to demonstrate potential breaches of Articles 6, 8, 10 ECHR. The theis also reviews land and property law issues relating to potential breaches article 1 protocol 1 ECHR. This paper will focus on current area of research into the legal background for s215 Local Government Act 1972, which passes responsibility for maintenance of closed churchyards to local authorities. The paper explains the legal process and legal responsibility, and highlights areas of contention.


The Cemetery Research Group runs two events a year: in May and in November. Follow the links and send in an abstract