The Queen (on the application of Atta UL Haq) v Walsall Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mrs Justice Carr |
| Judgment Date | 22 January 2019 |
| Neutral Citation | [2019] EWHC 70 (Admin) |
| Docket Number | Case No: CO/3552/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 January 2019 |
[2019] EWHC 70 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
and
Mrs Justice Carr
Case No: CO/3552/2017
Michael Fordham QC and Nikolaus Grubeck (instructed by Fountain Solicitors) for the Claimant
Jonathan Auburn and Zoe Gannon (instructed by the Solicitor, Walsall Metropolitan Borough Council) for the Defendant
Hearing dates: 4–5 December 2018
Approved Judgment
Lord Justice Singh and
Introduction
This is the judgment of the Court.
This is a claim for judicial review in which the Claimant challenges the lawfulness of a policy adopted by the Defendant, Walsall Metropolitan Borough Council, entitled ‘Rules and Regulations in respect of Cemeteries and Crematoria’ (the “Cemetery Policy”), specifically those provisions (contained in para. 6.9(g)) which preclude individuals from erecting raised edging around the grave of a deceased person.
The Claimant, Mr Atta Ul Haq, is a practising Barelvi Muslim. His father, Mr Hafiz Khudadad Qadri (“Mr Qadri”), who was a prominent member of the community and an imam, passed away on 21 June 2015 and was buried on the following day at Streetly Cemetery, which is administered by the Defendant local authority. The Defendant has refused to give the Claimant permission for the erection of a four-inch raised marble edging around his father's grave. The Claimant's request arises from his religious belief that the grave is sacrosanct and stepping on the grave is an offensive, religiously proscribed act that must be prevented.
The Claimant challenges the Cemetery Policy in light of the Defendant's refusal on the grounds, first, that such action constitutes a breach of Articles 9 and 8 of the European Convention on Human Rights (“ECHR”); and secondly, that it constitutes unjustified discrimination contrary to sections 13 and 19 of the Equality Act 2010. The Claimant seeks an order (a) quashing the Defendant's policy and (b) prohibiting the Defendant from enforcing the prohibition on the edging of Muslim graves.
Permission to bring this claim for judicial review was granted by Cheema-Grubb J on 15 February 2018.
At the hearing, oral submissions were made by Mr Michael Fordham QC for the Claimant and Mr Jonathan Auburn for the Defendant. We are grateful to all counsel and those instructing them for their written and oral submissions.
Factual and Procedural Background
As we have mentioned, the Claimant is a practising Barelvi Muslim. He lives in the Walsall area. His father was a well-known and respected Islamic scholar, who passed away on 21 June 2015. He was buried the next day in what is described as the “lawn cemetery” section of Streetly Cemetery, Aldridge, Walsall, which is owned and managed by the Defendant. Shortly after the burial, the Claimant sought permission from the Defendant to erect a small marble edging, no higher than four inches, around his father's grave. This edging was intended to prevent people from walking across the grave, so as to bring the grave into compliance with his understanding of the requirements of Islam.
To illustrate the significance of this, the Claimant relies on the expert report prepared by Shaykh Mohammed Yazdani Raza (Misbahi), who is a Hanafi jurist of the London Fatwa Council. Shaykh Raza states in his report dated 21 March 2017, that “stepping on [a] grave … without a religious reason … is forbidden”. Standing or walking over it, according to Islamic belief, “literally harms the inhabitant of the grave”. Edgings or a “sufficiently raised mound of soil above the grave” are necessary in order to prevent the grave being walked upon (it should be noted that he does not say that only edgings are required). This is especially so in relation to scholarly figures, such as the Claimant's father. Such views are corroborated by Mufti Abdul Karim of the Ghamkol Sharif Mosque in Birmingham, whose opinions are also relied upon in evidence filed on behalf of the Claimant.
However, the Defendant refused to grant the Claimant permission to erect raised edging around his father's grave. It relied on the Cemetery Policy, which was formulated originally in 2009, para. 6.12 of which was entitled “Memorials on Lawn Headstone Sections”, this being the version that was in force at the relevant time. So far as relevant, it provided that:
“d) Any additional memorial [besides a headstone/table conforming to the dimension requirements stipulated in Rule 6.12(a)-(c)] in the form of a surround … will not extend beyond 610mm. (2 ft.) from the head end of the grave space or beyond the width of the grave space nor be of a height greater than 100mm (4 ins.) …
g) No kerbstone or any other form of monument or memorial whatsoever will be allowed in this section of the cemeteries.
h) Nothing else may be placed or erected on or over a grave except wreaths and flowers at the time of interment.”
In the light of a public consultation which took place between 1 February and 31 March 2016, this policy was updated in October 2016, with the relevant rules now contained in para. 6.9. The only material change is contained in para. 6.9(g), which now provides:
“No kerbstone or any other form of monument or memorial whatsoever will be allowed in this section of the cemeteries. However, upon payment of a fee, the council shall install a standard wooden frame level with the surrounding ground that will not impede the grass maintenance regime. The council will not maintain such a frame and will require it to be removed and replaced if a further burial takes place”.
This Policy (both in its original and updated form) was relied on by the Defendant to provide the justification for the refusal of the Claimant's request.
In responding to this claim for judicial review the Defendant relies on the evidence of Mr Stephen Billings, its Bereavement and Registration Services Manager. Mr Billings has filed three witness statements during the course of these proceedings.
Mr Billings' evidence shows that Streetly Cemetery is divided into a number of areas, comprising the “traditional area, cremated remains areas, children's areas and the lawn areas”. Each area is further broken down into sections. For example, within the “adult lawn area”, there is a dedicated section for the Muslim community known as the “T” section (where Mr Qadri is buried). There are, in addition, sections which are dedicated to infant graves (sections NB (for Muslim burials), Q and W).
According to Mr Billings' evidence, the Council has opted to manage the cemetery in accordance with the “lawn principle”, which is based on the Commonwealth War Graves method of laying out burial plots. This is the principle that graves should have a uniform appearance, with rows of consecutive headstones laid out and lawn areas placed in front of each memorial. No fences, barriers or other obstructions are placed between the graves. One reason for this is that, as a matter of appearance, it affords an opportunity to contemplate in a quiet and (in general) a uniform setting. There is also an underlying point about societal values, which goes beyond the aesthetic: the layout emphasises that we are all equal in death and that attention is not drawn to any particular grave because of that person's status. Although that may not be (and in the case of this Claimant is not) the motivation behind the erection of marble edging, it may be perceived in that way by others, if not now, then in years to come, since a grave and marble edging are designed to last for a long time.
Mr Billings acknowledges that there are some exceptions to the lawn cemetery principle to be found at Streetly Cemetery. For example, an older section of the cemetery is laid out in a traditional churchyard style, and, being historical, cannot be changed. Different rules apply to the section of the cemetery for the burial of babies and infants, to reflect the particular emotional issues that come with the loss of a baby or infant. These graves can include raised marble edgings if desired. Moreover, in other sections, permission has been granted by the Council to have graves on lawn sections to be mounded by approximately 6 inches on request. Whilst this does, to an extent, affect the uniformity of the cemetery, the general appearance of a simple lawn area without barriers or obstructions remains. Individuals have the further option to seek permission to use “wooden grave edgings flush with the ground”, which can be installed upon request. The Defendant in 2017 also decided to erect signs advising visitors to avoid walking on the graves in the Muslim sections wherever possible in both English and Urdu. However, the Claimant considers that none of these options is satisfactory, and his requests for further accommodation have been rejected by the Defendant.
The parties have engaged in significant correspondence in order to resolve the issue without litigation, but the parties have been unable to reach a compromise. In accordance with the amended para. 6.9 of the Cemetery Policy, the proposed solutions by the Defendant thus far have involved ground-level alterations. The Defendant remains concerned that any divergence from this would inhibit lawn maintenance and would upset the uniformity and equality of appearance of the present layout. That does not satisfy the Claimant, since it would not prevent individuals or machines (such as lawnmowers) passing over the grave, contrary to the Claimant's beliefs. That said, Mr Fordham made clear at the hearing before us that the Claimant would not object to a strimmer passing over his father's grave. He recognises that the grave needs to be maintained and this includes the cutting of...
To continue reading
Request your trial
-
R Harry Miller v The College of Policings
...the aims pursued. A certain margin of judgment has to be afforded to the decision maker in this area: R (Haq) v Walsall District Council [2019] PTSR 1192, 213 In relation to the term ‘necessary’ Lord Bingham emphasised in Shayler, supra, [23]: ““Necessary” has been strongly interpreted: it ......