Council did not act unlawfully in refusing to allow edging round grave: Court

Walsall Metropolitan Borough Council did not act unlawfully when it refused to allow a Muslim resident to erect raised marble edging round his father’s grave, a Divisional Court has ruled.

Atta Ul Haq’s father died in 2015 and was buried the following day at Walsall’s Streetly Cemetery, which uses a ‘lawn’ approach under which graves are of uniform size and flat.

But Mr Ul Haq said his religion required the erection of a four-inch raised marble edging around his father's grave to prevent people walking on it.

In Haq, R (On the Application Of) v Walsall Metropolitan Borough Council [2019] EWHC 70 he challenged Walsall’s cemetery policy on the grounds that it was a breach of Articles 9 and 8 of the European Convention on Human Rights and was unjustified discrimination contrary to sections 13 and 19 of the Equality Act 2010 as graves of babies and infants were treated differently.

Mr Ul Haq sought an order quashing Walsall's policy and prohibiting it from enforcing the prohibition on edging at Muslim graves.

The case was heard by Lord Justice Singh and Mrs Justice Carr. They said they were “persuaded that the claimant's wish to have the marble edging in question is sufficiently linked to the underlying belief to constitute a manifestation of that belief”, and that Mr Ul Haq could not reasonably have had his father buried anywhere else, given the religious requirement for this to be done as quickly as possible.

They said though that the evidence presented “should lead this court to conclude that what the defendant has decided clearly falls within its margin of judgement”. The judges therefore rejected Mr Ul Haq’s case under the convention.

They also rejected his claim over age discrimination, because Walsall had “shown that there is sufficient justification for the difference of treatment”, the judges concluded.

A Walsall statement said: “In its judgement the court stated that the council has carried out consultation with the local community, and made adjustments to its policies which are fair and lawful.

“The court also stated that the council as the burial authority is best placed at a local level to make rules and regulations which are appropriate.”

Mark Smulian