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:
Good morning from the Court of Arches, sitting at St Mary-le-Bow, where the family of the late Margaret Keane are appealing against the Church of England's refusal to allow an Irish-only inscription on her gravestone. #MessageToMargaret— CJ McKinney (@mckinneytweets) February 24, 2021
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.’
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.
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.
(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:
Darkness falls outside St Mary-le-Bow. The case is winding down. The Dean of Arches says the court will need to clear out soon so that the priest can set up for evening service.— CJ McKinney (@mckinneytweets) February 24, 2021
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.
The judges are back. Morag Ellis QC announces the court's decision: the appeal is allowed. The Keane family win.— CJ McKinney (@mckinneytweets) February 24, 2021
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.
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:
Morag Ellis QC: "the decision is to allow the appeal and therefore to grant a faculty, without the Chancellor's condition requiring translation [on the gravestone], but with a condition… that a translation be provided in whatever the appropriate parish register is".— CJ McKinney (@mckinneytweets) February 24, 2021
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.
So DELIGHTED that the Court of Arches has allowed our clients’ appeal & they can finally have an Irish-only inscription on their mum’s headstone.— Mary-Rachel McCabe (@MaryRachel_McC) February 24, 2021
It’s disgraceful they ever had to go through this process but I am so glad our all-women, all-Irish legal team did them proud!💪🏻☘️💪🏻 pic.twitter.com/SIoV1lwE1T
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.
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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