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Last Rites and Human Rights: Funeral Pyres and Religious Freedom in the United Kingdom

  • Peter Cumper (a1) and Tom Lewis (a2)

This article considers the litigation in Ghai v Newcastle City Council in which the legality of open air funeral pyres under the Cremation Act 1902, and under the right to freedom of religion and belief in article 9 of the European Convention on Human Rights, was considered. Ultimately the Court of Appeal held that open air funeral pyres within a walled enclosure were not unlawful. But at first instance the Administrative Court, which had assumed that domestic law prohibited such pyres, held that such a ban would not breach article 9 since it was legitimate to prevent causing offence to the majority of the population. It is the approach of the Administrative Court to article 9 (which was not considered by the Court of Appeal) that forms the basis of the critical analysis in this article. In particular it is argued that the Administrative Court undervalued the right to freedom of religion and belief, as against the need to prevent offence to others, and adopted a stance which was overly deferential to Government and Parliament.1

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2 See Molleson, T, ‘The archaeology and anthropology of death: what the bones tell us’, in Humphreys, SC and King, H (eds) Mortality and Immortality: the anthropology and archaeology of death (London, 1981), p 15; and Ucko, PJ, ‘Ethnography and Archaeological Interpretation of Funerary Remains’, (1969) World Archaeology, 1(2), pp 262280.

3 On the different ways by which bodies can be disposed see Davies, DJ, ‘Forms of Disposal’, in Garces-Foley, K (ed) Death and Religion in a Changing World (New York, 2005), pp 228245.

4 See Bradbury, M, Representations of death: a social psychological perspective (London, 1999); and Katz, J, Hockey, J and Small, N (eds) Grief, Mourning and Death Ritual: facing death (Buckingham, 2001).

5 See Grainger, R, ‘Let Death be Death: Lessons from the Irish Wake’, (1998) Mortality 3(2), pp 129141.

6 See Davies, DJ, The Theology of Death (T&T Clark, London, 2008); and Davies, DJ, Death, Religion and Belief: the rhetoric of funerary rites (London, 1997).

7 See Pearson, MP, The Archaeology of Death and Burial (Stroud, 2003); and Metcalf, P, Celebrations of Death: the anthropology of mortuary ritual (Cambridge, 1991).

8 See Robben, ACGM (ed) Death, Mourning and Burial: a cross cultural reader (Oxford 2004); and Kellehear, A, Howarth, G and Charmaz, K (eds) The Unknown Country: death in Australia, Britain and the USA (Basingstoke, 1997).

9 See Triandis, HC, Culture and Social Behavior (New York, 1994); and R Inglehart, Modernization and Postmodernization: cultural, economic, and political change in 43 societies (Princeton, 1997).

10 See Kramer, K, The Sacred Art of Dying: how the world religions understand death (New York, 1988).

11 Differences also exist within the different Christian traditions on death rites. See L Larson-Miller, ‘Roman Catholic, Anglican and Eastern Orthodox Approaches to Death’, in K Garces-Foley, note 2 above, at pp 93–121.

12 See Langer, R, Buddhist Rituals of Death and Rebirth: Contemporary Sri Lankan Practice and Its Origins, (London, 2007).

13 See Laungani, P, ‘Death Among Hindus in India and England’; (1999) International Journal of Group Tensions, 28(1–2), 85114.

14 Marcus, IG, The Jewish Life Cycle: rites of passage from biblical to modern times (Seattle, 2004), pp 193248.

15 See Dessing, N, Rituals of birth, circumcision, marriage, and death among Muslims in the Netherlands, (Leuven, 2001), pp 141182.

16 See K Myrvold ‘Sikhism and death’ in Kathleen Garces-Foley, note 3 above, at pp 178–206.

17 Rivers, WHR, ‘The Contact of Peoples’, in Essays and Studies presented to William Ridgeway (1913), pp 474492, cited by Kroeber, AL in (1927) American Anthropologist 29(3) 308315 at 309.

18 See Jupp, PC, From dust to ashes: the replacement of burial by cremation in England 1840–1967 (Congregational Memorial Hall Trust, 1990); and Howarth, G and Jupp, PC (eds), The Changing Face of Death: historical accounts of death and disposal (London, 1997).

19 See Jupp, PC and Walter, T, ‘The healthy society 1918–1998’, in Jupp, PC and Gittings, C (eds) Death in England: an illustrated history (Manchester, 1999), pp 256282; and Jupp, PC, From Dust to Ashes: cremation and the British way of death (London, 2006).

20 R (Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and another intervening) [2009] EWHC 978 (Admin); [2009] WLR (D) 151.

21 R (Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and another intervening) [2010] EWCA Civ 59.

22 Ibid at [8].

23 The Cremation Act 1902, s 2. Section 4 enables local authorities to establish crematoria and section 5 regulates their location in relation to dwellings and public highways and consecrated ground.

24 Ibid, s 7.

25 Ibid, s 8.

26 See SI 2008, No 2841, reg 13.

27 See Ghai, note 21 above, at [3] (Lord Neuberger MR). Moore-Bick LJ and Etherton LJ agreed, giving no separate judgments.

28 Ibid at [35] (Lord Neuberger MR).

29 Ibid at [40] (Lord Neuberger MR).

30 See Ghai, note 20 above, at [83]. On Cranston J's reasoning see also [79–85]. The Administrative Court operated on the understanding that the requirement be that cremation take place fully in the open, ie not within any structure (see Ghai, note 20 at [8–9]); and that ‘building’ meant a ‘structure with roof and walls’ (see Ghai, note 20 at [82]). The possibility of compromise, a walled enclosure open to the sun, seems not to have been explored at first instance. The Court of Appeal noted that this was not surprising given the content of the pre-action correspondence (see Ghai, note 21 at [2]).

31 Article 9 of the ECHR provides that:

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law, necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

It was also claimed that the ban breached articles 8 (the right to respect for a private life) and 14 (the principle of non-discrimination) of the ECHR.

32 Kokkinakis v Greece (1993) 17 EHRR 397 at [31].

33 See Handyside v UK (1981) 4 EHRR 149 at [49].

34 R (on the application of Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.

35 See Ghai, note 20 above, at [86].

36 Ibid at [101].

37 Ibid at [87].

38 In regard to open air cremation, a great deal of conflicting expert evidence was adduced by both sides in relation to Hindu funerary beliefs and customs. See Ghai, note 20 above at [21–45].

39 See Williamson, at [23] (Lord Nicholls), cited at [88] in Ghai.

40 Ghai, note 20 above, at [16].

41 Ibid at [102].

42 Ibid at [61] and [105].

43 Ibid.

44 Huang v Secretary of State for the Home Department [2007] 2 WLR 581 at [19] (Lord Bingham).

45 Ghai, note 20 above, at [121].

46 Ibid at [122].

47 Ibid at [123]. There was also found to be no breach of article 8 of the ECHR due, inter alia, to the ‘public character’ of open air cremation [138] and the fact that such cremations were not so fundamental to the lives of Hindus and Sikhs in the UK as to form part of their identity [139]. Similarly, article 14 of the ECHR was not engaged because there was an ‘objective and reasonable justification’ for the difference in treatment with regard to UK rules governing funeral rites [147–151].

48 Ibid at [161].

49 Ibid at [116].

50 Ibid at [8].

51 Ibid at [117]. On Hindu attitudes to death generally see Laungani, P, ‘Death Among Hindus in India and England’, (1999) International Journal of Group Tensions, 28(1–2), pp 85114; and Firth, S, Dying, Death and Bereavement in a British Hindu Community (Leuven, 1997).

52 For example, when a Jehovah's Witness refused to attend a parade in her school commemorating war with Italy, the European Court was unable to discern anything ‘either in the purpose of the parade or in the arrangements for it, which could offend the applicant's pacifist convictions’: Valsamis v Greece, (1997) 24 EHRR 294 at [32], (18 December 1996).

53 In X v Austria, Application No 1753/63, 8 European Yearbook 174, the Commission denied a prisoner access to a prayer chain on the ground that it was not ‘an indispensable element in the proper exercise of the Buddhist religion’.

54 It is important to note that in recent years the European Court has tended to move away from this approach, and in Hasan and Chaush v Bulgaria (2000) 10 BHRC 846 at [78], (26 October 2000), it held that article 9 of the Convention ‘excludes any discretion on the part of the State to determine whether religious beliefs … are legitimate’.

55 See Arrowsmith v UK, Application No 7050/75, 19 DR 5, 19.

56 For example, see United States v Kuch, 288 F Supp 439 (DDC 1968), where the Defendant, having been charged with a number of drugs offences, argued unsuccessfully that her arrest violated the free exercise of her (alleged) religion, central tenets of which included venerating a three-eyed toad and singing the supposedly ‘holy’ songs, ‘Puff, the Magic Dragon’ and ‘Row, Row, Row Your Boat’.

57 Ghai, note 20 above, at [100].

58 Ibid at [118].

59 Ibid.

60 Cremation Regulations, Consolidation and Modernisation, CP 11/07, 16 July 2007, available at < + /> (accessed 4 January 2010).

61 On the specific issue of Hindu cremation see, Firth, S, ‘Changing Hindu attitudes to cremation in the UK’, (2003) Bereavement Care, 22(2), at 2528.

62 For example, the 2001 census for England and Wales illustrates, graphically, the religiously diverse nature of the UK today. See <> (accessed 4 January 2010).

63 For example see, Garces-Foley, K (ed), Death and Religion in a Changing World (New York, 2005); Kellehear, A, Howarth, G and Charmaz, K (eds) The Unknown Country: death in Australia, Britain and the USA (Basingstoke, 1997); Jupp, P, Gittings, C (eds) Death in England. an illustrated history (Manchester, 1999); and Davies, DJ, A Brief History of Death (Oxford, 2004).

64 See Jupp, PC, From Dust to Ashes: cremation and the British way of death (London, 2006).

65 Cremation Regulations, Consolidation and Modernisation, CP 11/07, 16 July 2007, available at < + /> (accessed 4 January 2010).

66 Ghai, note 20 above, at [119]. Some support for this argument may be found in the dicta of Lord Hoffmann in R (Begum) v Headteacher and Governors of Denbigh High School [2005] 2 All ER 396 at [64].

67 See Curl, JS, The Victorian Celebration of Death (Stroud, 2000) p 179; and Quigley, C, The Corpse: a history (North Carolina, 1963) p 102.

68 For example, the change in the Catholic approach has been summarised as follows: ‘Since 1963 the Church has given permission for Catholics to be cremated. Prior to this cremation was seen to be anti-Christian in intention’. See The Guidance Note on the Burial of Ashes, to the Bishops conference of England and Wales, Department for Christian Life and Worship (2008), available at <> (accessed 4 January 2010).

69 See, for example, Şahin v Turkey (2007) 44 EHRR 5 at [109]; Otto Preminger Institute v Austria (1994) 19 EHRR 34 at [50]; and Murphy v Ireland (2004) 38 EHRR 13 at [67]. This justification proffered by the Strasbourg Court has been subjected to criticism. See eg, T Lewis ‘What not to wear: religious rights, the European Court, and the margin of appreciation’, (2007) 56 ICLQ, 395.

70 See, generally, Masterman, R, ‘Section 2(1) of the Human Rights Act 1998: binding domestic courts to Strasbourg?’, [2004] Public Law 725; R Masterman, ‘Taking the Strasbourg jurisprudence into account: developing a municipal law of human rights under the Human Rights Act’, [2005] ICLQ 907; and S Foster, ‘The protection of human rights in domestic law: learning lessons from the European Court’, [2002] NILQ 232.

71 See, generally, Hunt, M, Using Human Rights in English Courts (Oxford, 1999); Clayton, R, ‘Judicial deference and democratic dialogue’, [2004] Public Law 33; and Pannick, D, ‘Principles of interpretation of the Human Rights Act and the discretionary area of judgment’, [1999] Public Law 545.

72 Ghai, note 20 above, at [105].

73 See Nussbaum, M, ‘“Secret sewers of vice”: disgust, bodies and the law’, in Bandes, S (ed) The Passions of Law (New York, 1999), pp 1962.

74 Percy v Director of Public Prosecutions [2001] EWHC Admin 1125 at [28] (Hallett J).

75 Feinberg, JThe Moral Limits of the Criminal Law; Offense to Others (Oxford, 1985), p 25.

76 Ghai, note 20 above, at [108].

77 Ibid.

78 Otto Preminger Institute v Austria (1994) 19 EHRR 34.

79 The film could only be watched at the applicant's ‘art house’ cinema (which had a narrow specialist clientele), on payment of a fee by those who were over 17 years of age.

80 Otto Preminger, note 78 above, at [53–54].

81 Ghai, note 20 above, at [120].

82 Ibid.

83 Feinberg, note 75 above, at pp 33–34.

84 Otto Preminger, note 78 above, at [49]. For a critique of the European Court's ruling in Otto Preminger see D Pannick, ‘Religious feelings and the European Court’, [1995] Public Law 7.

85 Griffin, J, ‘First steps in an account of human rights’, (2001) European Journal of Philosophy 306 at p 314.

86 See also R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23 at [123] (Lord Walker).

87 Otto Preminger, note 78 above, at [49] (emphasis added). In its subsequent case law the Court has stressed that where restrictions on freedom of expression are introduced in order to prevent offence, the expression in question must be ‘gratuitously offensive’. See Giniewski v France, Application No 64016/0031, 31 January 2006 (HUDOC) at [52] and Klein v Slovakia, Application No 72208/01, 31 October 2006 (HUDOC) at [51–52].

88 Ghai, note 20 above, at [8–9].

89 Ibid at [100].

90 See Giniewski v France, Application No 64016/0031, 31 January 2006 (HUDOC) and Klein v Slovakia, Application No 72208/01, 31 October 2006 (HUDOC). Moreover, Professor Luzius Wildhaber, former President of the European Court of Human Rights, speaking extrajudicially (at the University of Leicester, 18 March 2009) has suggested that the European Court would probably decide Otto Preminger differently today.

91 For example, see İA v Turkey, No 42571/98, ECHR 2005-VIII [29], where the deferential approach of the European Court to religious sensibilities can be contrasted with its less deferential approach in Giniewski v France and Klein v Slovakia (ibid).

92 Kass, LR, ‘The wisdom of repugnance’, (1997) The New Republic 19.

93 Interestingly, other much more public, commercially exploitative and pseudo-scientific/rationalist uses of human remains have not been subject to restrictions, most notably Gunter von Hagen's ‘Bodyworlds’ exhibitions (in which preserved corpses are displayed like tailor's dummies), which have been shown on terrestrial British television.

94 Ghai, note 20 above, at [121–3].

95 The primary means by which this dialogue may take place being s 3 and s 4. See eg, Hansard, HC Vol 314, col 1141 (June 24, 1998) (Jack Straw MP, Home Secretary); Hickman, T, ‘Constitutional dialogue, constitutional theories and the Human Rights Act 1998’, [2005] Public Law 306; Clayton, R, ‘Judicial deference and ‘democratic dialogue’: the legitimacy of judicial intervention under the Human Rights Act 1998’, [2004] Public Law 33.

96 Ghai, note 20 above, at [101].

97 Ibid, at [22–23].

98 Ibid, at [93].

99 See, generally, De Waal, Frans, Age of Empathy (New York, 2009) and Hoffman, ML, Empathy and Moral Development: implications for caring and justice (Cambridge, 2001).

100 Bayle, P, ‘Commentaire philosophique sur ces paroles de Jesus-Christ:Contrains – les d'enter’ in Tannenbaum, A Goodman, Pierre Bayle's Philosophical Commentary: a modern translation and critical interpretation (New York, 1987) (1727) cited in Habermas, J, ‘Intolerance and discrimination’, 1(1)(2003) International Journal of Constitutional Law 2 at 4–5.

101 Gearty, C, Can Human Rights Survive? (The Hamlyn Lectures) (Cambridge, 2006), p 43.

102 R Rorty, ‘Human rights sentimentality and rationality’, available online at <> (accessed 4 January 2010).

103 Rorty, R, Contingency Irony and Solidarity (Cambridge, 1989), p 93.

104 R v Price (1884) 12 QBD 247. Considered in Ghai, note 20, above, at [72]. The case of Price led to the movement which ended with the passage of the Cremations Act 1902, formally permitting cremation. See Curl, JS, The Victorian Celebration of Death (Stroud, 2000), pp 184–6.

105 Ibid at 255–256 (emphasis added).

106 See generally, Moore, J, Religion in Victorian Britain (Manchester, 1988).

107 For example, Victorians placed great emphasis on matters such as the religious piety of the deceased: G Howard, ‘Is there a British way of death’, in A Kellehear et al, note 8, above, p 84. See also Jalland, Pat, ‘Victorian death in decline 1850–1918’, in Jupp, PC and Gittings, C (eds) Death in England: an illustrated history (Manchester, 1999), pp 230255.

108 Tony Walter observes that the idea of a ‘good death’ has changed from being dominated, in the past, by religion, to being more focused, now, on receiving medical assistance and being able to share one's experiences with fellow sufferers: Walter, T, ‘Historical and cultural variants on the good death’, (2003) British Medical Journal, 327: 218220. See also, Austin, D, Jupp, PC and Neuberger, J, Dying Well: a guide to enabling a good death (Abingdon, 2004), pp 85122; and Green, JW and Nash, O, Beyond the Good Death: the anthropology of modern dying (Philadelphia, 2008).

109 Herodotus, The Histories (Penguin, 1996) (trans Aubrey de Sélinourt) at 169. For a discussion of a modern parallel see Conklin, BA ‘“Thus are our bodies, thus was our custom”: mortuary cannibalism in an Amazonian society’ in Robben, ACGM (ed) Death, Mourning and Burial: a cross cultural reader (Oxford, 2004) at 238.

110 Midgely, M, Can't We Make Moral Judgments? (New York, 1991) at 83, cited in Lukes, S, Moral Relativism (London, 2008) at 28.

111 See note 110, above. Lukes, S, Moral Relativism (London, 2008).

1 We should like to thank Graham Ferris and an anonymous reviewer for their helpful comments on an earlier draft. Errors and omissions remain our own.

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Ecclesiastical Law Journal
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