The National Association of Memorial Masons, R (on the application of) v Cardiff City Council

A burial authority may adopt an accreditation policy for memorial masons where it is necessary for the proper management, regulation and control of its cemeteries. A modest accreditation fee is not, without more, an unlawful restraint of trade. The authority must keep the policy under review when circumstances change and must assess any allegedly equivalent alternative scheme carefully and on evidence. The statutory power does not extend to general regulation of the memorial-masonry industry. A decision-maker’s relevant professional experience does not itself establish apparent bias, but a current and central institutional dispute involving the decision-maker may do so. Where apparent bias is established, the affected decision is tainted and must be retaken by an impartial body.

The claimant trade association challenged Cardiff City Council’s decision to permit memorial works in its cemeteries only where the mason was accredited under the British Register of Accredited Memorial Masons scheme. The challenge concerned restraint of trade, irrationality, disproportionality, misunderstanding of the schemes, and apparent bias. The challenged decision followed the Council’s adoption of a policy recognising BRAMM or an equivalent scheme, while rejecting the claimant’s Register of Qualified Memorial Fixers as equivalent. The central issues were whether the policy and its application fell within the Council’s statutory cemetery-management powers, and whether the decision-maker’s role in an organisation involved in the dispute created a real possibility of bias.

1. Scope of power. Article 3(1) of the Local Authority Cemeteries Order 1977 permitted the Council to regulate which masons could work in its cemeteries, including through an accreditation scheme. The power was confined to what was necessary for proper cemetery management, regulation and control. “Necessary” meant more than merely desirable, though less than imperative, in this context.
2. Trade and proportionality. The original BRAMM policy had a proportionate connection with cemetery safety and the use of recognised professional standards. A modest annual accreditation payment was an incidental cost of trade, not an unlawful restraint of trade. Once NAMM withdrew from BRAMM and an alternative scheme was established, however, the policy required careful review. Excluding an adequate alternative scheme could exceed the statutory power or disproportionately interfere with competent masons’ access to the local market.
3. Equivalence. “Equivalent” did not mean identical, but having the same value as the comparator. The Council was entitled to consider independent scrutiny, disciplinary arrangements, complaint investigation, costs, and the experience of other authorities. A rational decision required careful, evidence-based assessment and, potentially, further information gathering and consultation.
4. Apparent bias. The fair-minded and informed observer test applied in the administrative context. Relevant experience and reconsideration of an earlier policy did not themselves establish bias. Here, however, the decision-maker was simultaneously a senior Council officer and President and chair of an organisation that had recently decided to sever contact with NAMM over the BRAMM dispute. The dispute was current and central to the issue. A fair-minded and informed observer would conclude that there was a real possibility of bias.
5. Relief. The claimant had not waived the objection, delayed materially, or accepted that the same decision was inevitable. Apparent bias tainted the decision, so the court set aside only the decision that RQMF was not equivalent to BRAMM and required it to be retaken by an impartial body. The policy itself was not quashed. Costs were left for written submissions.

First-instance judicial review. No prior appellate decision is stated in the judgment.