Religion—Human rights—Open air funerals

Queen’s Bench Division, Administrative Court (London), Cranston J, 8 May 2009

The prohibition on open-air funerals in s 7 of the Cremation Act 1902 (CA 1902) and reg 13 of the Cremation (England and Wales) Regulations 2008 (SI 2008/2841) (CR 2008), is not contrary to the European Convention on Human Rights (the Convention) or otherwise unlawful.

Ramby de Mello, Tony Muman and Martin Henley (instructed by J M Wilson Solicitors) for the claimant. John McGuinness QC (instructed by Valerie Dodds) for the authority. Satvinder Singh Juss (instructed by the Bar Pro Bono Unit) for the first intervener.

Richard Drabble QC, Eric Fripp and Ellis Wilford (instructed by Simons Muirhead & Burton) for the second intervener.

The claimant was an orthodox Hindu. He wished his body to be cremated on an open air pyre following his death, and he also wanted similar open air funerals for other Hindus. He approached the defendant local authority to facilitate those goals. The authority rejected his approach on the ground that open air funerals were unlawful under CA 1902. The claimant applied for judicial review.

A Sikh temple and a charity intervened in support of his application. The claimant contended, inter alia: (i) the general words of s 7 of the 1902 Act could not, in the absence of clear words or by necessary implication, override his fundamental right to undertake an open air funeral pyre in accordance with his religious or cultural beliefs, and that the word crematorium in reg 13 of CR 2008 could be read as meaning an open crematorium; (ii) an interference with the manifestation of his religious beliefs could not be justified pursuant to Art 9 of the Convention; and (iii) preventing him from exercising his “moral/religious/cultural/familial choice of a funeral rite” would breach his right to respect for his private and family life under art 8 of the Convention.

Cranston J:
Section 7 of CA 1902 provided: “The Secretary of State shall make regulations as to the maintenance and inspection of crematoria, and prescribing in what cases and under what conditions the burning of any human remains may take place, and directing the disposition or interment of the ashes ...”.

Regulation 13
Regulation 13 of CR 2008, so far as material, provided: “No cremation may take place except in a crematorium the opening of which has been notified to the Secretary of State.”

Those provisions put the matter beyond doubt: open air cremation was not permitted. Certainly CA 1902 was designed to enable local authorities to provide a service, crematoria, but it was also concerned with open air cremations. In any event, the preamble to CA 1902 was explicit: an Act to provide “for the regulation of the burning of human remains, and to enable burial authorities to establish crematoria” (his lordship’s emphasis). If the Act had been intended to apply only to the burning of human remains inside crematoria, it could and would have said so.

Limited impact

It was important to note, however, that the impact of the Act and regulations was limited. A crematorium was defined as a building so all that was demanded was that cremations take place in a building; the design of the building and its internal arrangements were not prescribed.

Crematoria were subject to a range of other environmental and planning legislation. The claimant conceded that cremations on an open air pyre would need to be controlled along similar lines, possibly with additional measures covering matters such as the collection of remaining bones and the disposal of ashes in rivers and streams.

Article 9

The claimant invoked Art 9 of the Convention, freedom of religion and belief, as protection of his right to conduct cremations on open air pyres. Reflecting the common law, the right to hold a belief in the necessity of cremation on open air pyres attracted absolute protection under Art 9. In his lordship’s judgment, Art 9 would also protect the claimant’s freedom to manifest his religious belief in open air funeral pyres in the absence of justification. That followed because the evidence was that the claimant’s belief in open air funeral pyres was cogent and also central to his strand of orthodox Hinduism. It was beside the point that typically Hindus in the UK did not share that belief.

2008 Regulations

In his lordship’s view, the prohibition on open air funeral pyres in CA 1902 and CR 2008 was justified.

The secretary of state advanced various arguments, in particular that others in the community would be upset and offended by them and would find it abhorrent that human remains were being burned in that way. The claimant took issue with that. That was a difficult and sensitive issue. Precisely for that reason a court had to accord primacy to the conclusion of elected representatives. It was within their remit to conclude that a significant number of people would find cremation on open air pyres a matter of offence. The balance they had struck in CA 1902 Act and CR 2008 was entitled to respect. The claimant conceded that with time, education and publicity the public would not be offended but would recognise that open air funeral pyres were a practice worthy of respect.

Article 8

The claimant and first intervener also invoked Art 8, respect for private and family life. Article 8 might in some circumstances offer protection to particular funeral arrangements. In the case of cremation on an open air funeral pyre, however, art 8 has no purchase. The claimant was stepping outside the private and familial spheres. The event would have a public character and as such would not fall under art 8’s protective wing. In any event, there would be justification for legislative interference with art 8 protection; it would follow along the same lines as that with Art 9.

The claim would therefore be dismissed.