Why it was correct for an appeal court to allow a memorial entirely in Irish

25th February 2021

Not all law is secular.

And so one of the happy features of being a legal commentator in England is coming across cases involving church law – an entire parallel system of law and indeed jurisdiction.

It is like stepping from time to time through a portal into another world of courts and rules and judges, vaguely familiar but also radically different.

*

One such case was heard yesterday – a fascinating appeal that has significance beyond the boundaries of any church and churchyard.

For bringing this appeal to wider attention we can thank the tweets of CJ McKinney, who live-tweeted the hearing (that was broadcast on Zoom).

His thread is here:

*

The appeal was about what will be inscribed on the gravestone of the late Margaret Keane.

In particular, it is about the proposal of the daughter of the deceased that the gravestone should bear the words ‘In ár gcroíthe go deo’  – that is, in Irish.

This phrase can be translated into English as ‘in our hearts forever’.

For as the court at first instance described:

‘Margaret Keane and her husband were both born in the Irish Republic but had made their life in the United Kingdom. They remained proud of their Irish heritage and were active in the work of the Gaelic Athletic Association both in Coventry and nationally. This was important public service to the Irish community in the United Kingdom and formed a major part of Mrs. Keane’s life and of her work for others.’

However, the Coventry Churchyard Regulations said ‘no’:

‘It is to be remembered that the memorial will be read not just by those who knew the deceased in question but by those who did not. Indeed, the message conveyed to those who did not know the deceased is in many ways more important than the message being given to those who did know him or her. It is for this reason that inscriptions in a language other than English may not be authorised by an incumbent.’

But this is not an absolute prohibition.

The nature of these regulations appears to be to set out what an incumbent vicar can agree to without referring it to the chancellor of the diocese.

The regulations thereby also provide:

‘Any application for an inscription wholly or in part in a language other than English should be referred to the Chancellor through the Registry. The Chancellor will in such cases normally require an application to be made for a faculty.’

*

And so a faculty – or permission – was applied for, and a decision on the application was made by the chancellor of the diocese sitting in a consistory court.

The judgment of that chancellor is here.

And it is an extraordinary piece of legal reasoning.

The most relevant passage of the judgment for the appeal was as follows (which I have broken into smaller paragraphs for flow):

‘The proposal in this case is not just for the inclusion of a single word but for a short phrase which the reader will immediately realise is conveying a message.

‘However, it is a message which will be unintelligible to all but a small minority of readers.

‘In those circumstances it is not appropriate for it to stand alone without translation.

‘I make it clear that in saying this I am not in any sense adjudicating on the relative merits or standing of English and Irish Gaelic as languages.  The situation would be likely to be wholly different if I were having to make a decision as to a memorial in the Irish Republic. However, the situation which I have to address is of a memorial in English-speaking Coventry.

‘Should I permit an inscription which will be incomprehensible to almost all its readers?

‘Not only would the message of the inscription not be understood but there is a risk of it being misunderstood.

‘Given the passions and feelings connected with the use of Irish Gaelic there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement.

‘That is not appropriate and it follows that the phrase “In ár gcroíthe go deo” must be accompanied by a translation which can be in a smaller font size.’

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Wow.

What can one say?

Well, first that there is a substantial Irish population in Coventry – as in the rest of the west midlands.

Second that gravestones and memorials in Anglican churches and churchyards are often not in English: lector, si monumentum requiris, circumspice.

But most jarring is the assumption that anything written in a language other than English – especially Irish – risks being seen as a ‘slogan’.

The chancellor asserts ‘there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement’ .

But in fact there is a sad certainty that such sloppy and prejudiced reasoning by somebody who should know better will be seen as some form of idiocy and would of itself be seen as a political statement.

It is a remarkable and discrediting passage, and it was right it was appealed.

However, it must be noted that the chancellor did not prohibit the use of the Irish phrase  – but ordered that it must be complemented on the memorial by a translation.

And so the case is not about whether Irish could be used on a memorial, but whether it was open to the deceased’s family to have an all-Irish memorial.

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And now we go to the wonderfully named ‘Court of Arches‘ – like something out of a story by George R R Martin – which appears to have appellate jurisdiction in such a case.

Here kudos should be conferred on the solicitors Irwin Mitchell and the barristers Caoilfhionn Gallagher QC and (the former legal blogger) Mary-Rachel McCabe who acted pro bono publico.

(Pro bono publico means ‘for the public good’ – which I translate for the benefit of the chancellor of the diocese of Coventry.)

The hearing was not contested by the local church – nobody was sent from Coventry to the court of arches to defend or justify the chancellor’s judgment.

The hearing comprised representations from the daughter as the petitioner, and from the Irish language group Conradh na Gaeilge as an intervenor.

The court also appointed an independent lawyer as amicus curae (which I translate as a friend to the court, for the benefit of the chancellor of the Coventry diocese).

Delightfully the hearing had to finish in time for a church service to take place:

From McKinney’s tweets, it appears that the decision was attacked on a number of grounds including (as befitting a west midlands case) Wednesbury unreasonableness as well as on the basis of human rights law.

We do not yet know which of these submissions gained the most traction for the judges beneath the arches.

But we do know that the appeal was allowed – and so a memorial can be made out entirely in Irish.

I also understand that court costs of the amount of around £2,000 have been reimbursed to the daughter – and there must be a question about charging for such costs in these cases.

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But, this being the church of England there seems an attempt was also made to humour the chancellor – and so a translation can be available on request:

The whole point of the church of England, of course, is to find – if possible – such a middle way.

Or via media – for those other than the chancellor of the dicocese of Coventry.

But nonetheless this was a sensible and welcome appeal judgment.

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The wider import of this case is not about whether a church can control what is said on a memorial on church grounds.

Indeed, as it was a church court that decided the issue, this matter has been kept within the structure of church law, and thereby within the church.

This was not an example of the secular courts overturning a decision of the church – but a decision by the church itself, but at a higher level.

Nor is the significance of the case about what incumbent priests should be able to routinely allow – there is nothing inherently wrong with a general policy, as long as exceptions are considered appropriately.

The significance of this case is, for me, about the sort of reasoning and grounds that can be relied upon when denying outright the possibility of a memorial entirely in a language of the deceased and of the deceased’s family and community.

Such a decision should never be based on the prejudiced generalisations put forward by the chancellor in this particular case, and we must hope that in the awaited written judgment of the court of arches that the appeal judges says this – emphatically.

There must always be the possibility in principle of a memorial entirely in an appropriate language, subject to circumstances.

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Thank you to the family of Margaret Keane and the lawyers who brought and won this appeal.

In ár gcroíthe go deo

And if you want to look a monument to their efforts, you will be able to go to Coventry for a look.

Lector, si monumentum requiris, circumspice

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POSTSCRIPT

Since I wrote the post above, I have now seen this brilliant post by Caoilfhionn Gallagher the QC who led the appeal.

A superb piece of legal blogging.

 

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44 thoughts on “Why it was correct for an appeal court to allow a memorial entirely in Irish”

  1. One of the best examples of use of a foreign language – again Latin – is the epitaph of Ben Johnson in Westminster Abbey. Although carved as two words – “O” and then “rare” it can easily be read “Orare” – “pray [for]”.

    Hard to believe that the Abbey authorities at the time (1637) would not have realised the possibility of an attempt to circumvent protestant opposition to catholic forms… They seem to have taken a more eirenic view that the Chancellor of Coventry.

    1. 1637 would have been the time that Archbishop Laud was endeavouring to move the Church of England towards more ornaments and less of a focus on the Bible and faith. Those of a different view were convinced that he was trying to reintroduce Roman Catholicism, and the Johnson monument might demonstrate that their concerns were not entirely imagined.

      We might possibly have moved on somewhat since then.

      1. David has quoted Wren’s Latin epitaph at St Paul’s.

        In his preferred third design for the new cathedral, to replace the truncated Gothic edifice destroyed in the Great Fire, he added a nave to a Greek cross with dome, but that was consider too close to European, Catholic, “Popish” models for a proper church in the English tradition. For the design that was officially approved, Wren added a weird tiered spire, like a pagoda. Imagine the spire of St Brides on top of the dome of St Paul’s. Somehow, thankfully, he neglected to build it.

        Yes, we have moved on since the Test Acts. From its wartime experience, Coventry Cathedral has a mission of peace and reconciliation, typified by its Cross of Nails, so it is rather upsetting that this unfortunate dispute should have arisen there.

  2. What a wonderfully uplifting piece, after what seems to be a age of authoritarian hostile decisions foisted upon a mostly helpless public. I’m addressing the Home Office in particular.

  3. As a retired solicitor who spent far more of my life than I should waiting around in courts, it has always struck me that the best judicial decisions are those which contain a healthy modicum of commonsense. It seems to me the Chancellor’s decision in this case contained no commonsense at all. Good decision on appeal.

  4. So now I assume some unfortunate clerk is going to have to go around to collect and translate all Latin inscriptions in all graveyards in Coventry…?

    1. I understand that a clerk will not have to go around to gather a record of existing headstones.

      I am told there is already a parish register at St Giles in Exhall. It was by accessing the parish register that it was ascertained that St Giles’ Churchyard already had other gravestones in Welsh, Latin and Hebrew, without translation. Indeed, there is a Welsh headstone with “In our hearts forever” in Welsh only (the same as above in Irish). The parish register noted the translation into English.

      That evidence was also put before the court of arches.

      I am told also that the family always expected that a translation would be kept in the parish register and so do not see the judges’ requirement as anything out of the ordinary.

  5. The sass of “Pro bono means ‘for the public good’ – which I translate for the benefit of the chancellor of the diocese of Coventry.” Amazing!!! Really interesting piece, thank you for shedding light on this.

  6. My thought at the time, for what it’s worth, was this: what if the proposed inscription had been in Scots Gaelic rather than Irish? How many people who aren’t conversant with one or the other can tell the difference? And would Eyre Ch have taken the same view?

    ‘Anns ar cridheachan gu bràth…”

    1. In parts of Scotland, it was traditional to inscribe gravestones with the gaidhlig (Scots Gaelic) phrase “‘gus am bris an latha”. This roughly translates as, “until the break of day”, which is a poetic and optimistic reference to the hope of the afterlife for the interred. I think prohibition of the tradition of inscribing gravestones with such phrases, which have been used over generations, would be churlish. Even if someone was interred outside their native land, many would still feel that “my heart’s in highlands, my heart is not here”, as the song goes (R Burns).

  7. A visit (post-lockdown) to Coventry Cathedral will reveal two lines of regularly spaced ‘Old Penny’ pieces embedded in the Aisle floor; apparently at the request of the Bishop who liked the Choir to be uniformly spaced when taking their places

  8. No doubt the chancellor feared some visitors would mistake In ár gcroidhe go deo for Tiocfaith ár lá; would there have been any difficulty had the inscription been in Welsh, or indeed like some in St. Sepulchre’s at Oxford in Hebrew?

  9. Given the passions and feelings connected with the use of “European” languages there is a sad risk that the phrase “Honi soit qui mal y pense” would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement… I am expecting Nigel Farage to take this up any time now…

  10. David,

    Many thanks for this post. As one of the few full-time practitioners in this area of law it is always fun to see those occasions when decisions receive some mainstream attention. I’ve sadly never got to argue a case in the Court of Arches, but there’s a few years left in me, so maybe one day…

    I don’t think it’s quite right to say it’s a parallel system. It is *part of* the English Court system. The Court of Arches is just as much a court of the realm as the Court of Appeal, and the Consistory Court just as much as the High Court. I’m not sure you would say that the Administrative Court was a parallel system to any other civil court of the realm, for example. Contempt of the Consistory Court or Court of Arches can be punished by imprisonment, at least in theory. Had this appeal been unsuccessful, then a final appeal could have been made to the Privy Council – which really would have been something to behold.

    We all need to await the written judgment for the full reasons of course, but it seems as if common sense has prevailed. I don’t think first instance judges making wrong (or even prejudiced) judgments is desperately newsworthy of itself, so it’s interesting why and how this has captured the imagination so. I suppose stories about the church often get spotlighted (not least, clergy discipline cases) and there may well be the ‘Game of Thrones’ element you mention.

    I’m particularly interested to read what happens as regards costs. It’s not correct to say that the Church of England has “refunded” costs. The Church of England doesn’t really exist other than as some sort of unincorporated association in legal terms, and in any event the Court of Arches is operationally independent from the various institutions of the Church. The judges are independent and the court is clerked independently too – by solicitors in private practice (who are entitled to statutory fees for doing so). There is no public funding, so applicants (usually) and respondents (occasionally) are responsible for the Court costs. It would be utterly unreasonable to expect the judges and clerks to work for free, so I assume one institution or other of the Church of England has offered to meet the court costs. I’m intrigued to learn who this is, and what (if any) advice they took before offering to do so, as these were likely charitable funds.

    1. On your third point, a correction of fact, I have amended ‘refund’ in the post to ‘reimburse’.

      As regards your points about ‘parallel’ – I aver that in a non-Euclidean, longitudinal sort-of-way they are parallel even if they are both ultimately under the crown and privy council. But as a secular lawyer, I regard church courts as a different world – a church of Faerie in contrast to our mundane everyday world – and what happens in Faerie should stay in Faerie.

      1. As those splendid nineteenth century cases show…

        To see a history of courts and the Church of England I recommend:

        Rodes Robert E. Jr., Law and Modernization in the Church of England: Charles II to the Welfare State. Notre Dame, In.: University of Notre Dame Press, 1991

        I obtained a copy second hand online at a reasonable price

        I would also recommend:
        https://www.uniset.ca/other/cs2/1919AC815.html
        Bourne v Keane
        This is (I believe) the first judgment of Birkenhead LC and it declared lawful a bequest to, among others, Jesuits – although it seems not to the Society itself. (This was under the 11829 Act, amended in the 1920s to remove sections put in at Peel’s insistence (“a tub of lard to the whale”, the whale being hard-line protestants) and constituting a mild persecution of the Jesuits.

        Church matters were very important n the Commons until recently. Harold Macmillan (who sat in most Parliaments between 1924 and 1964) said that the Prayer Book debates and the Norway debates were the greatest he had participated in.

    2. My two cents here are that its not so much that the church courts run in parallel to the ‘normal’ courts, but that the church, civil, and criminal courts all run in parallel to one another.

      So ‘running in parallel’ doesn’t mean ‘not a part of’.

    3. Matt, ecclesiastical law was only ever a niche part of my practice at the Bar before I retired, but I did appear once in the Court of Arches. Like the St Giles Exhall case, it concerned memorial headstones in a churchyard, but the issue was not the inscriptions on them but the extent of the district council’s responsibility (under section 215 of the Local Government Act 1972) for maintaining a ‘closed’ churchyard, by “keeping it in decent order,” in relation to those memorials found to be unstable and unsafe or dangerous: Re Hutton Churchyard [2009] PTSR 968. Unlike the hearing last Wednesday, the court in July 2018 (also sitting in the nave of St Mary-le-Bow church and presided over by the then Dean, Sheila Cameron QC) sat fully robed, as was I. North Somerset Council (for whom I appeared) was appealing a decision of Chancellor Briden in the Bath & Wells consistory court, made following a complaint by Hutton Parish Council after North Somerset Council had laid about one third of the memorials in the churchyard flat after allegedly using a ‘topple tester’ to test their stability in breach of the conditions of a faculty. The parish council was not represented but sent along observers, including their clerk. What made the case memorable (apart from it being my only Arches Court appearance) was the interruption mid-morning when the clerk keeled over and the court adjourned while an ambulance was called to attend to him! Happily, he recovered and the hearing resumed without further incident. The case, though, does illustrate the interface between ecclesiastical and civil law.

      One other point of interest: June Rodgers, then chancellor of Gloucester diocese, sat as one of the ‘wingers’ in the Hutton Churchyard case. It was chancellor Rodgers, sitting as deputy chancellor of the Diocese of London, who handed down a record 497 pages (810 paragraphs) judgment in Re Christ Church, Spitalfields [2017] ECC Lon 1. The case went on appeal to the Arches Court where the judgment was significantly shorter at 38 pages and 145 paragraphs: see [2019] EACC 1; 21 Ecc LJ 261. The current Dean of the Arches, Morag Ellis, (who did not appear below) appeared on the appeal for the respondents.

  11. A very delightful piece. Thank you.

    Would one feel differently if the chancellor had not used the foolish arguments of jargon, politics and risk etc. and limited himself to public comprehensibility?

    That is, the churchyard is effectively a public space available to all (I am assuming), and — let us try arguing — there is a public good in the language(s) used in epitaphs being readily comprehensible. DAG refers to the presence of a substantial Irish population which, it is implied, would be able to read the text. The number of readers would be greatly expanded.

    Thus, we would have the principal words in Irish Gaelic (or other non-English language) and a tiny translation below.

  12. What a preposterous original ruling.

    A cemetery not far from me – not a Jewish cemetery – has several headstones in Hebrew script, which have stood for many years without any of the hostility or negative reactions predicted by this nasty, petty, woefully wrong-headed first decision; and I imagine something similar is true of graveyards the length and breadth of the country.

    O tempora, o mores!

    (And I’m not translating that for the benefit of the Chancellor of the diocese of Coventry – although I imagine it’s his first language…)

  13. In a sense, this is a legal system working. Many faiths have their own internal decision making apparatus. It is just a peculiar result of English history that we have an established church that is still embedded into the UK’s constitution. In this case, a bad decision was reached, and it was overturned on appeal. It would have been best that the bad decision was not made, but we are all human and prone to error. And that is why decisions by public authorities need to be open to judicial review.

    The Court of Arches meets at and is named after St-Mary-le-Bow (Sancta Maria de arcubus) named for the arches of the crypt of the medieval church that was probably built for Archbishop Lanfranc after the Normal Conquest, as a base at the heart of the City of London on Cheapside. His successors moved to Lambeth.

    The equivalent Anglican appeal court in the Province of York is the rather boringly named Chancery Court of York. But then there is the delightfully obscure Court of Ecclesiastical Causes Reserved, which has maintained its full complement of five judges since 1963 but sat just twice, once in 1987 to approve the Henry Moore altar at St Stephen Walbrook, and once in 1984 to allow the installation of a copy of a Polish icon at a church in Devon…

    1. Among the obscure courts that still seem to exist in the UK, there is the Earl Marshal’s court, that is the High Court of Chivalry, which has jurisdiction over heraldry (!) in England, but which had not sat for decades before it was last convened in 1954, and so its first point of business was to decide whether it still existed.

      In case this sound like more ridiculous echoes from the Game of Thrones, the equivalent Court of Lord Lyon in Scotland is still quite active, issuing court orders and fines that have effect in the real world. https://www.courtofthelordlyon.scot/

      Other historic hangovers, such as the courts of piepowders and the courts leet, were abolished in the 1970s.

      Except, somewhat bizarrely, I understand, for the court leet in Laxton, Nottinghamshire. https://www.nottingham.ac.uk/manuscriptsandspecialcollections/exhibitions/online/laxton/thecourtleetandcommonland.aspx
      https://alistairmillar.wordpress.com/2009/12/10/laxton-%E2%80%93-the-intriguing-historic-court-leet/ They do still have authority.

  14. As a congregant and member of the PCC of St Giles church, Exhall, where the memorial is located, I’m delighted that common sense has prevailed but sorry the family has had to go through so much grief and stress to get there. The Keane family has received support and encouragement from the church throughout the process, and we join with them in celebrating this eminently sensible outcome!

  15. The section of the Coventry churchyard regulations about other languages, requiring a faculty application for such memorials, was it seems added by the chancellor *subsequently to* the original judgement. This application came before the chancellor because, as originally sought, it fell slightly outside the regulations in a different way. The issue of language was brought up by the chancellor during his consideration of the petition.

    I note that a new chancellor has now been appointed by the diocese.

    1. Thank you for this spot, which is [ahem].

      And if correct, a welcome new fresh start for the diocese.

      1. Makes one sigh for the good old days of Archdeacon Harpsfield.

        Amending a law retrospectively is intolerable.

  16. The Chancellor’s claim that “there is a sad risk that the phrase would be regarded as some form of slogan or that its inclusion without translation would of itself be seen as a political statement” seems quite unaware that even when written in the Queen’s English the sort of short phrases and Biblical references used on headstones will require some interpretation. It could be that RIP has become a rallying call for some group, it could be that a verse has been chosen that will offend some readers, say 1 Corinthians 14:35 (And if they want to learn something, let them ask their own husbands at home; for it is shameful for women to speak in church) rather than the more commonly seen 1 Corinthians 13:13 (And now abide faith, hope, love, these three; but the greatest of these is love)

    But when I walk through a churchyard I don’t fear such things, since I know that whatever inscriptions I shall see have been approved by people of some sense and taste as not being sentiments that would outrage a reasonable audience, even if it mightn’t be to their taste or even immediately comprehensible. So instead I might reflect that all happy families are alike; each grieving family is grieving in its own way.

  17. “the phrase would be regarded as some form of slogan”

    Was he being mildly witty or is he ignorant of the origin of the word “slogan”? My money’s on the latter.

  18. If you think that he Court of Arches and Church Law is esoteric, just wait till you get to the Jewish Beth Din (House of Law) and some of the extraordinary and surreal cases it has to consider.

    1. That is a bit of a can of worms. It would be interesting to see DAG’s take on legal systems that really are parallel to the conventional ones, in that they operate separately, and what happens when they collide with the normal legal system.* How far should English or Scottish or international law interfere with Orthodox Jewish or Muslim practices, for example in the area of marital arrangements.

      * at which point Bernard points out to Jim Hacker that parallel lines can never collide.

  19. The original decision was not only offensively craven to prejudice, but also oddly insensitive to context. In the history of humanity has never before been as trivial as it is now to obtain a sensible, if imperfect, translation of text.

    The only risk for a majority of visitors of not understanding or misunderstanding is because they are unusually incurious or determined to do so. Most people have in their pockets or bags the means to access a sufficient translation of the words.

  20. It is ironic that in the case of Spike Milligan, his preferred epitaph of “I told you I was ill” was not allowed by the Church in English, and was only accepted when an Irish translation was used instead….

  21. David
    Nice post.

    It seems to me, the audience for a gravestone is almost entirely for the family or those known to the deceased.

    it is an intensely personal matter. What you or I understand as we go for our Sunday walks or whatever is neither here, nor there.

    That is not to say rules are not required but to suggest someone might be offended by something they cannot understand is misplaced concern.

    Has the Church never heard of search engines? If someone was that desperate to have a translation, it’s easily done.

    pk

    1. Reminds me of the mass every Sunday that as a child I was compelled to attend. Chanting Latin which for a good majority, despite knowing it all by heart, was mysterious and all but meaningless.

    2. As one of the three appeal judges in this case, HH Judge David Turner QC, Ch*, pointed out during the hearing (and will no doubt be repeated in the reserved judgment), an inscription/epitaph on a headstone in a Church of England churchyard is regarded as having three purposes, namely “to honour the dead, comfort the living and to inform posterity.”

      (*David Turner is chancellor of the Diocese of Chester and also sits regularly as a judge both at Chelmsford Crown Court and in the Family Division of the High Court. He has recently been appointed as Deputy Chair of the Clergy Discipline Commission (succeeding Sir Mark Hedley, who retired in December 2020), in which role he is also Deputy President of Tribunals.)

      And, yes, the church has heard of search engines, even if Chancellor Eyre QC was unaware of them. One of the ironies of this case is that in a consistory court case in April 2018 (Re St Peter and St Paul, Nutfield [2018] ECC Swk1; 21 Ecc LJ 111), Morag Ellis QC, (the presiding judge in the Court of Arches but sitting then as deputy chancellor of the Southwark consistory court) allowed a memorial bearing the Welsh word ‘Tangnefedd’ (meaning peace), noting that “Those who want to find out the meaning can, these days, easily look it up online.” (Judgment, para 13.) Chancellor Eyre referred to this decision in his judgment, but distinguished it on unconvincing grounds.

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