Adath Yisroel Burial Society v HM Senior Coroner for Inner North London

The Divisional Court allowed a claim for judicial review challenging the Senior Coroner's published ‘‘equality protocol’’ of 30 October 2017 on the grounds that it unlawfully fettered the Coroner's discretion, was irrational, and gave rise to unlawful indirect discrimination contrary to Article 14 read with Article 9 of the European Convention on Human Rights and section 19 of the Equality Act 2010. The Court held that the Coroner cannot adopt a rigid, blanket rule excluding religious reasons for expedition from consideration because the Coroner's powers are governed by the Coroners and Justice Act 2009 and attendant Regulations and therefore the usual principle against fettering of discretion applies. The policy also failed the requirement of proportionality under Article 9 and amounted to discriminatory treatment in breach of Article 14 and the Equality Act. The public sector equality duty (section 149 Equality Act 2010) was considered but the Court found no breach of that procedural duty.

This is a judicial review by (1) Adath Yisroel Burial Society and (2) Mrs Ita Cymerman challenging a policy issued by the Senior Coroner for Inner North London on 30 October 2017 which stated that no death would be prioritised because of the religion of the deceased or family. Permission was granted by Holman J. The Claimants argued (i) the policy fettered judicial discretion and was irrational, (ii) it breached Article 9 of the European Convention on Human Rights and Article 14 read with Article 9, (iii) it amounted to indirect discrimination contrary to section 19 of the Equality Act 2010, and (iv) it breached the public sector equality duty in section 149 of the Equality Act.

The Court considered standing (finding the second Claimant a victim for Convention purposes), the statutory and regulatory framework governing coroners (including the Coroners and Justice Act 2009 and the Coroners (Investigations) Regulations 2013), and the factual evidence about the impact of delay on Jewish and Muslim burial practices. The Chief Coroner intervened and submitted the policy was over-rigid and unlawful. The Court took the issues in sequence: fettering of discretion; irrationality; Article 9; Article 14; indirect discrimination under the Equality Act; and the public sector equality duty.

The Court held (i) the coroner's powers were akin to statutory powers so the rule against fettering applied, and the published protocol unlawfully fettered the discretion of the Coroner and her officers by excluding religious reasons from consideration; (ii) the protocol was irrational because it categorically excluded relevant considerations and/or adopted an unjustified absolutist stance; (iii) the protocol interfered with Article 9 rights and failed the proportionality assessment and fair-balance requirement, and discriminated in breach of Article 14 (and the equivalent domestic indirect discrimination provisions in the Equality Act); and (iv) on the facts the public sector equality duty had been considered by the Coroner and therefore there was no breach of that procedural duty. The remedy granted was a declaration that the policy was unlawful and a quashing order setting it aside. The Court emphasised the Coroner may legitimately prioritise particular cases (including for religious reasons) provided any policy is flexible and takes relevant considerations, including resource constraints, into account.

The Court allowed the claim in part: it held that the Senior Coroner's published protocol of 30 October 2017 was unlawful because it unlawfully fettered discretion, was irrational and discriminated in breach of Article 14 read with Article 9 and the Equality Act 2010 (indirect discrimination). The Court rejected the Claimants' complaint under the public sector equality duty. The Court granted a declaration that the policy was unlawful and quashed it, explaining that a lawful policy must be flexible, permit consideration of religious reasons for expedition where relevant, and respect proportionality and equality principles.