During the course of a judgment in which the court granted a faculty for the introduction of a memorial outside the Churchyard Regulations, the court made the following observation concerning the legal basis of such Regulations:
12. It is widely known that a working party of the Ecclesiastical Judges Association under the leadership of the Right Worshipful Peter Collier KC has been seeking ways of fostering a greater level of uniformity amongst diocesan Churchyard Regulations. Whilst it would be improper and unwise to venture into matters which are currently out to consultation, one development can usefully be noted.
13. The device of delegated authority in this context is now generally recognised as a ‘legal fiction’. With that in mind, the working party recommended placing Churchyard Regulations on a clearer and more robust legal footing. A clause was inserted into the Church of England (Miscellaneous Provisions) Measure 2023 which completed its passage through General Synod in July 2023. This will empower Chancellors to make Additional Matters Orders concerning churchyard memorials replicating the current delegated authority procedure. Assuming this Measure achieves parliamentary approval and Royal Assent, it will pave the way for amendments to be made to the Faculty Jurisdiction Rules 2015, such amendments having already been approved in principle by General Synod. In short, this will regularise current practice by allowing individual Chancellors to make Additional Matters Order[s] permitting the introduction of memorials conforming to certain types and categories (ideally with minimal difference between dioceses) provided they have the approval of parochial clergy under a prescribed process.
