HS2 and the Church of England

The Archbishops’ Council of the Church of England made headlines when it petitioned the House of Commons against the High Speed Rail (London-West Midlands) Bill. The bill in question is pretty much what it says on the tin: it will facilitate the construction of a high-speed rail line (popularly known as ‘HS2’) between London and the West Midlands. Despite what some of the news stories seem to imply, the Church of England doesn’t object to the HS2 project per se. Their objection is much more esoteric. As currently plotted, the construction of the rail line will cut through three Anglican burial grounds, necessitating the exhumation and reburial of many bodies. While this might seem straightforward and uncontroversial, the Act represents an interesting example of the curtailment of ecclesiastical jurisdiction for the sake of the common good.

By Christian Guthier [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

By Christian Guthier [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)%5D, via Wikimedia Commons

Exhumations from consecrated ground traditionally require a ‘faculty’ from the Consistory Court of the diocese concerned (faculty jurisdiction, which also includes changes to the fabric of a church, now makes up the bulk of a Consistory Court’s docket). In keeping with the Church’s teaching that burial should be permanent, faculties for exhumation will only be granted in exceptional cases (see the Chancery Court of York’s decision in Re Christ Church, Alsager [1999] 1 All ER 117). However, the high-speed rail bill essentially ousts the Church of England’s faculty jurisdiction wherever the rail line is concerned. Clause 26(1) provides that:

Nothing in any enactment relating to burial grounds and no obligation or restriction imposed under ecclesiastical law or otherwise has effect to prohibit, restrict or impose any condition on the use of any land comprised in a burial ground for the purpose of constructing any of the works authorised by this Act.

Clause 26(2) further provides that any human remains and/or grave monuments must be dealt with in accordance with schedule 19, which essentially establishes a wholly secular framework for carrying out reburials.

This is not the first time the Church’s faculty jurisdiction has been abridged for the sake of public works. For example, section 239 of the Town and Country Planning Act 1990 contained similar provisions. However, section 240 gave the bishop of the diocese the power to set conditions for exhumations and reburials made under the provisions of the Act. Those two sections have been applied to other enactments as well, so there’s ample precedent for giving the Church some authority over reburials when land has been compulsorily acquired. That approach strikes me as a nice middle ground that respects the rights of both Church and State.

Because the High Speed Rail (London-West Midlands) Bill is a hybrid bill (that is, it’s a public bill that “affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class,” to use the words of Speaker Hylton-Foster), the Select Committee will hear testimony from everyone who has petitioned against it. The Archbishops’ Council will have a chance to make their case, and I suspect Parliament will ultimately implement a system similar to that found in the Town and Country Planning Act.

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