R (National Association of Memorial Masons) v Cardiff City Council
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 15 April 2011 |
| Neutral Citation | [2011] EWHC 922 (Admin) |
| Date | 15 April 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6284/2010 |
[2011] EWHC 922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT sitting at CARDIFF
Cardiff Civil Justice Centre
The Honourable Mr Justice Blake
Case No: CO/6284/2010
Winston Roddick CB, QC andRuth Holtham den Besten (instructed by Kuit Steinart Levy LLP) for the Claimant
Wayne Beglan (instructed by Legal Services, Cardiff City Council) for the Defendant
Hearing dates: 15 th 16 th March, 2011
Introduction
This is an application for judicial review of decisions of the defendant Cardiff City Council (CCC) relating to its policy for accreditation of stone masons who work in cemeteries it manages. Permission to bring the claim was granted by Mr Justice Lindblom on the 1 st December, 2010 following an oral hearing, but as anticipated at that hearing the claimant has applied to amend its grounds for claim by contending that the material decision was vitiated by apparent bias. The parties were agreed that I should receive submissions upon that ground and treat it as a rolled up hearing of permission and the substantive hearing.
The claimant (NAMM) is the trade association of memorial masons established in 1907. Its activities include the maintenance and revision of a code of best working practice in the industry and code of best business practice, and having input into and a responsibility for the content of the GNVQ Course for a relevant trade qualification for those seeking to work in the industry.
The defendant CCC is a burial authority within the meaning of the Local Authority Cemeteries Order 1977 and as such has general powers by Article 3(1) of that Order to "Do all such things as they consider necessary or desirable for the proper management, regulation and control of a cemetery."
It is common ground that one of the things that a burial authority may do in the exercise of that statutory power is to adopt a policy for regulating which stone masons may work in cemeteries under its control and that such a policy could include a scheme of accreditation of stone masons on payment of a modest annual fee.
Since at least the year 2000 there has been concern by the Health and Safety Executive, local authorities and others as to the safety of cemeteries where headstones or other funeral monuments have been erected. A summary of those concerns is set out in the decision of the Arches Court in the case of In Re Welford Road Cemetery [1997] Fam 15 at paragraphs [18] to [36]. Following those concerns interested parties came together to devise a national system of accreditation. Apart from NAMM, others interested in such a scheme of accreditation included the Institute of Cemetery and Crematorium Management (ICCM) founded in 1913 that merged in 2005 with the Confederation of Burial Authorities.
In October, 2003 NAMM announced that it was establishing a register called the British Register of Accredited Memorial Masons (BRAMM) and this registration scheme became operational in late 2004. In July 2005, members of the South Wales Bench Marking Group for Burial and Cremation Authorities proposed that the BRAMM Scheme be adopted in this region. Before this time, from 1990, the defendant had its own local registration scheme. In April, 2006 CCC adopted for a trial period the scheme whereby BRAMM accredited masons were able to work in Cardiff and the BRAMM scheme was formally adopted after a lead in period from the 1 April, 2007.
The original BRAMM Scheme was run by NAMM. It collected the accreditation fees; it set the standards for the working practices necessary for accreditation; it provided for the register of accreditation to ensure compliance with working and best business practice; it policed the scheme under the supervision of a governing body where others were represented. The advantages for masons of a national BRAMM scheme to replace purely local registration schemes, was that accredited masons could work in a number of cemeteries run by different local authorities on the payment of a single accreditation fee per annum. There were advantages to local authorities and cemetery managers in participating in the BRAMM scheme: its representatives had input into the governance of the scheme through representation on the BRAMM Board; it did not have to duplicate standards of training and good working and business practice, and the registration fee covered not only the costs of accrediting and registering but a call out service by experienced masons to check the standards of accredited firms and memorial fixers employed by them in the case of doubt.
In 2008 three developments pertinent to the present application took place. The first was that from June 2008 a draft constitution for BRAMM was proposed. The second was that CCC started a review of its Cemetery and Cremation Policy as part of a five year cycle of review. The third was that Martin Birch who throughout the material time held the post of Head of Bereavement Services at CCC became President of the ICCM from September until the 28 September 2009. He subsequently became the chair of the board of directors of ICCM and occupies that role at the time of this hearing.
In the context of discussion for a constitution for BRAMM tensions arose from October 2008 onwards between the NAMM General Council and other members of the BRAMM working committee and in particular the ICCM representative. Essentially NAMM objected to masons not being able to form a majority of the BRAMM board and the possibility that the chair of the scheme would not be an accredited mason. It was also opposed to a number of the proposals in the constitution relating to governance, continuing professional development, the duration of a fixers' licence, and related issues. By May 2009 the disagreements between NAMM and the other representatives of BRAMM were such that NAMM withdrew from the working committee and the remaining members voted to adopt the disputed constitution.
In June, 2009 a extraordinary general meeting of NAMM adopted two resolutions firstly to suspend active involvement in the day to day operations of BRAMM until such time that the BRAMM board relinquished its stance on control and secondly to create a new national independent register of professional memorial masonry businesses and nationally competent memorial fixers.
From 12 May 2009, therefore, BRAMM, ceased to be a registration scheme run by NAMM, even though NAMM approved working practices were used as the basis of accreditation. BRAMM was registered as a trade association in June 2009. It currently describes itself as follows:-
"BRAMM (British Register of Accredited Memorial Masons) Scheme was set up in 2004 with the aim of establishing a network of nationally accredited businesses and registered fixers that will ultimately replace individual Registration Schemes.
i) To establish a recognised uniform standard of workmanship and business practice throughout the UK.
ii) To promote BRAMM Accredited Businesses and Registered Fixers.
iii) To ensure all Businesses, Fixers and Burial Authorities on the BRAMM Register follow the current health and safety guidelines to protect both the public and their employees.
iv) To ensure that BRAMM businesses give a guarantee of the stability of their Memorial.
v) To ensure the Scheme will be effectively policed ensuring that acceptable standards of fixing are maintained.
vi) To encourage on-going training and education within the memorial masonry industry.
vii) To promote a closer working relationship between Memorial Masons and Burial Authorities."
In November 2009 NAMM set up its own register called the Register of Qualified Memorial Fixers (RQMF).
By March 2010 relations between NAMM and the ICCM were at particularly low ebb as there was a dispute as to who controlled the BRAMM bank account, where registration fees formerly collected by NAMM were deposited. This dispute was subsequently satisfactorily resolved between the two bodies without recourse to litigation.
Meanwhile CCC proposed to adopt its Cemetery and Crematorium policy drawn up in 2008 and sent it out for informal consultation with local masons working in the Cardiff area. Paragraph 6.2 of the Policy states:
"6.2 Fixing of Memorials
6.2.1 No works are permitted to be carried out on any grave space except by a monumental mason who is accredited to the British Registration of Approved Monumental Masons Scheme ("BRAMM") or by staff of Cardiff Bereavement Services and such works may include any works associated with memorial safety inspections and the subsequent temporary making of any Memorial".
The rationale for this policy was set out in the following terms:
"To promote high standards and protect consumers we only allow those to the approved on the national scheme to undertake any works on Memorials in our Cemeteries. Approved masons have the necessary skills to ensure that any memorial they fix or repair will be able to pass a future stability test."
Paragraph 6.2.2 required:
"All Memorials (including Memorials being re-fixed after a burial has taken place and those found to be unsafe after Memorial testing has taken place) are to be fixed in line with the National Association of Memorial Masons ("NAMM") approved standard and code of safe working practice. This states the minimum requirements for the fixing of Memorials. On occasion it may be appropriate to include additional foundations of bearer slabs and these cannot exceed 4' in width x 18" deep. All costs for this work must be met by the person to whom a permit to place the Memorial was given on his or her heir".
The accompanying comment was:
"To ensure all Memorials are safe they must be fixed to the recognised approved standards of...
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