The Law Commission's Burial and cremation Consultation Paper comments
1.1 Approximately half a million people die in England and Wales each year, and each death will affect the lives of many other people. Those bodies will almost all be buried or cremated, using cemeteries or crematoria operated by local authorities, churches and other faith groups, or by private companies: these groups are part of the wider death care sector, alongside funeral directors, monument masons, and others.
1.2 That sector has experienced significant turbulence in recent years. The COVID-19 pandemic has led many of us to think more often about mortality. COVID-19 also brought into focus the role that different religious perspectives have in framing grief, for example when religious groups campaigned for Government to ensure that beliefs about funerary methods were respected.
1.3 The sector has also been subject to a number of investigations and reforms in recent years, from the Competition and Markets Authority’s review of funeral directors and crematoria to the introduction of statutory medical examiners. Not all of these changes are in scope of this project, but we are conscious that the sector has experienced an unusual degree of scrutiny and review, of which this project forms one part.
1.4 We are publishing this Consultation Paper against a backdrop of change in the sector. But the picture is also one of overdue reform. Much of the legislation governing cemeteries in general still dates from the second half of the nineteenth century. Private burial grounds are broadly unregulated. Elements of cremation law are over a century old. Reports have repeatedly found that burial grounds are close to capacity. We are aware in reviewing burial and cremation law of both the urgency for reform and the pressures facing the death care sector. ...
Terms of reference
1.13 The full terms of reference for all three sub-projects are included as Appendix 1 to this Consultation Paper. Some issues are identified in those terms of reference as being outside of the scope of this project. They are: (1) death certification and registration; (2) the regulation of funeral directors; (3) the Church of England’s common law duty to bury parishioners and those who die in the parish; (4) regulation of methods of preservation of human remains; (5) burial at sea; (6) planning and environmental law; (7) other issues relating to body parts, such as organ donation, post-mortem reproduction and police investigations; and (8) criminal offences that may be committed in relation to human remains, including in relation to desecration.
1.14 The reasons for excluding issues from the scope of the project vary. Some, like planning and environmental law, organ donation, and death registration, are part of their own wider legal framework, which it would be inappropriate for this project to reform piecemeal. Burial at sea has a separate legal framework which is intertwined with its naval history, so we did not view it as appropriate for inclusion. The criminal law in relation to dead bodies raises distinct issues which would not be appropriate for consideration in a project focused on burial and cremation law.
1.15 A number of these issues are reviewed in brief in the section starting at paragraph 1.102 below, so far as an understanding of them is useful for context to our consideration of reform to the law on funerary methods.
1.16 The regulation of funeral directors is not in scope of this project as it is a separate issue to the regulation of the funerary method itself. It is also an issue which has recently been investigated by the Competition and Markets Authority. ...
THE CASE FOR CHANGE
The state of current law Regulation of burial grounds
1.21 Burial law has developed piecemeal since the beginning of the nineteenth century. The result is that local authority cemeteries are governed by detailed legislation. Church of England churchyards are governed by a mix of legislation and the jurisdiction of the ecclesiastical courts. Some older private burial grounds were established under their own private Acts of Parliament, but for many others, and all newer ones, there is little regulation at all.
1.22 That means that in many private burial grounds and in Church of England churchyards there is nothing in place to govern how bodies should be buried. There are different standards to which burial grounds should be maintained by local authorities, the Church of England, the Church in Wales or where a private Act of Parliament applies, and none which apply to other private cemeteries. In the rare cases where there are problems in private cemeteries, that can result in it being difficult for Government to take action to enforce standards.
1.23 Similarly, there is no requirement for private burial ground operators or the Church of England to keep a record of the grant of burial rights, or for private burial grounds to issue burial rights in writing. That can result in distress to bereaved people as a result of mistaken burials, or people paying for burial rights only to be unable to locate the burial plot over which rights have been granted. There is a consistent requirement for burials to be registered, but the details are inconsistent and outdated making them an uneasy fit for private burial grounds.
Grave reuse
1.24 It is only lawful to reclaim and reuse old graves in London local authority cemeteries, three cemeteries which have obtained an Act of Parliament for the purpose, and in Church of England churchyards. The evidence we have suggests that grave space could soon run out in many parts of the country, and that this outcome is being staved off through burial authorities seeking to make use of every available space. The lack of grave reuse provisions also means that burial grounds cease to have a useful life after they are full, and risk becoming neglected or sites for anti-social behaviour.
Closed and disused burial grounds
1.25 The current system in law by which a burial ground can be closed requires the Secretary of State to seek an Order in Council. The use of an Order in Council for that purpose today looks anomalous and creates an unnecessary layer of procedure. The outdated closure system also does not include any provision for reopening closed burial grounds, yet many could be potential candidates for grave reuse as the last burials will have been made in them well over a century ago.
1.26 Burial law includes a general prohibition on building on disused burial grounds. There are exceptions to that rule now in place for Church of England churchyards, other religious burial grounds, and where the land has been compulsorily purchased or appropriated for development. Those exceptions are accompanied by a framework in the law which sets out what should happen to remains and memorials, and in some cases a right for the relatives of people recently buried in the burial ground to veto plans. There is therefore a gap in the law when it comes to other types of private burial grounds and local authority cemeteries, which prevents alternative uses of land which has been used in the past for burials.
Commonwealth war graves
1.27 The Commonwealth War Graves Commission was founded under Royal Charter to ensure the commemoration of those who died in the two World Wars. They have certain powers when it comes to war burials in local authority cemeteries and Church of England churchyards. However, there are gaps in that framework, and they have no powers in relation to private cemeteries, meaning that they must rely, in some cases, on goodwill rather than statute to protect war graves.
Cremation
1.28 The regulations governing cremation have been subject to more recent reform than burial law, and indeed remain in a state of transition following the introduction of the new statutory medical examiner system. However, there remain specific issues which merit a review.
1.29 Two issues of cremation law cause particular problems for funeral directors. First, the law provides for crematoria to scatter or bury ashes after 14 days if they are uncollected. Funeral directors have no similar provision, and it has been reported that they hold a quarter of a million sets of uncollected ashes as a result. As well as noting that storing these ashes is a problem, funeral directors question whether their premises are a suitable final resting place. Secondly, due to an anomaly created by historic Government guidance, many funeral directors hold large numbers of pacemakers removed prior to cremation for safety reasons. They lack any legal authority to dispose of these.
1.30 Cremation law also restricts where new crematoria can be sited, so that they have to be 200 yards from a dwelling house (unless the owner or occupier consents) and 50 yards from a public highway. Finally, there are no restrictions on using cremation when it comes to unidentified remains. With advances in forensic science, however, exhumations of buried bodies can contribute to solving missing persons cases, helping to bring peace to their families.
Our provisional proposals for reform
Regulation of burial grounds
1.31 We considered the case for creating a uniform system of burial law to apply to all burial grounds, regardless of who operates them. However, we think that it is important that the regulation of burial grounds is appropriate to their historical context and current use. That means that a one-size-fits-all approach is unlikely to be the right course. Instead, we have looked at different elements of regulation, including those currently applying to local authorities, and considered whether they should be reformed, and whether they should apply to private cemeteries and Church of England and Church in Wales churchyards.
1.32 We are not aware of widespread problems when it comes to the way bodies are buried, and the standards of maintenance in private burial grounds. However, there are isolated instances of poor practice, and these can cause significant distress to the families and friends of deceased people. We ask for consultees’ views on what rules should govern how burials are made in all types of burial ground.
1.33 Our provisional proposals would apply a uniform standard of maintenance to all burial grounds, replacing the current patchwork with a contextual requirement that burial grounds are maintained in good order appropriate to their current use. We also suggest modernisation of the Secretary of State’s enforcement powers. The Secretary of State would have the power to issue notices requiring actions to be taken in relation to a burial ground, and if they are not, to direct a local authority to undertake them and charge the cost back to the owner.
1.34 We do not think it is right to restrict how burial rights are granted in private burial grounds, because they are a matter of private contract and because that freedom may offer greater flexibility to those who use burial grounds. In order to ensure that people buying a grave space know what they have bought and can identify its location, and to guard against mistaken burials, we provisionally propose a requirement to issue burial rights in writing and record them in a register which is aligned to a plan of the site.
Grave reuse
1.35 We think that there is a good case for enabling grave reuse and reclamation in all of England and Wales, and in all types of burial ground. We have heard calls for those powers to be made available from private religious burial grounds and from local authorities. It is important that reuse is done in a way that maintains public trust. We provisionally propose that the safeguards that exist in statute where grave reuse and reclamation is currently permitted should be applied to that roll-out. That means notices should be issued for six months prior to reuse, and if relatives or the grave owner object, then no attempts at reuse or reclamation can be made for 25 years. Where legislation permits it currently, graves cannot be reclaimed or reused until 75 years after the last burial. We want to hear whether consultees think this is an appropriate period or whether it should be 100 years, or another period.
1.36 One approach to reform might be to enable all burial grounds to reuse and reclaim graves, provided they comply with these safeguards. However, we consider that to ensure that local communities trust that reuse will be done sensitively, and so that operators feel confident in being able to take reuse forward, a case-by-case approach is better. Burial ground operators would be able to apply to the Secretary of State for permission to reuse and reclaim graves. Such an application would be made following public consultation, and would set out which graves would be affected, any steps to be taken to preserve historic graves, and any mitigations identified to respond to local concerns.
Closed and disused burial grounds
1.37 The approach in law to closing burial grounds is outdated and anomalous in its use of Orders in Council. We provisionally propose reform so that burial grounds can be closed by a decision of the Secretary of State, but also so that they can be reopened. This could bring more space, particularly in Church of England churchyards, back into use, enabling more people’s wishes to be buried closer to their home or in locations which are meaningful for them to be met. Responsibility for maintaining many closed churchyards has been transferred to local authorities. We provisionally propose that it should remain with them in the case of reopened churchyards, but we consult on options for sharing income from burials with the local authority to alleviate the financial burden of maintenance.
1.38 The law permits building on some types of disused burial grounds but not others, which creates a confusing patchwork of provision, and is a barrier to the long-term sustainability of some burial grounds as they cannot be returned to any other use. We consider that there is a case for extending the framework governing building on disused burial grounds, and welcome consultees’ views on whether the existing 50- 8 year veto period for families is appropriate or ought to be aligned with that for grave reuse.
Commonwealth war graves
1.39 To aid in ensuring the continued protection of Commonwealth war graves, we provisionally propose that the Commonwealth War Graves Commission has new statutory rights. That would include the right to object to the removal of headstones and memorials in private burial grounds, to deal with remains and memorials when all forms of development on disused burial grounds take place, and to maintain private memorials when the families who erected them cannot be traced.
Cremation
1.40 Finally, we provisionally propose reforms which would enable funeral directors to return uncollected ashes to crematoria after a period of time, once they have made reasonable attempts to contact the applicant; and to enable funeral directors to dispose as they see fit of removed pacemakers, again after any relatives have been given an opportunity to claim them.
1.41 The restrictions on where crematoria can be sited were put in place when cremation emissions were seen as a public health risk, which is now largely addressed by technological progress. The effect of this restriction now appears to us to be mixed. We have heard some views that it now safeguards the solemnity of cremation services. It appears that the rule limits new crematoria in urban areas, but through interactions with planning law, enabling them to be built in the countryside or on green belt land. We want to hear consultees’ views as to whether these restrictions should be retained or not.
1.42 We provisionally propose that cremation, and other irreversible new funerary methods, should not be permitted in relation to unidentified bodies or remains. We take this approach because using burial is more likely to err on the side of caution in terms of the religious preferences of the unidentified person.
1.43 Taken as a whole, our proposed reforms would modernise burial law, ensuring appropriate regulation where currently it is lacking, and providing modern means of enforcing it. They would address pressures on burial space by enabling grave reuse in a way that ensures public confidence, and by enabling closed churchyards to be reopened. Alongside these main purposes, they would resolve a number of smaller issues in burial and cremation law, not all of which are summarised here, in order to make the law simpler and fairer. ...
STRUCTURE OF THE CONSULTATION PAPER
1.147 Following this introductory chapter, this Consultation Paper first turns to look at the regulation of burial grounds. Chapter 2 summarises the different laws applying to different types of burial grounds, sets out our overall approach to regulation, and looks at some preliminary issues. Chapter 3 looks at the rules which apply to the maintenance of burial grounds, and how bodies should be buried. Chapter 4 looks at burial rights and memorials, and Chapter 5 rounds off our discussion of the regulation of burial grounds by considering burial registration.
1.148 We then explore other specific issues in burial law. Chapter 6 looks at the issue of grave reuse and reclamation. Chapter 7 looks at the process used formally to close burial grounds, and whether reform should enable them to be reopened. Chapter 8 looks at the law on exhumation and on building over disused burial grounds, and Chapter 9 looks at the role of the Commonwealth War Graves Commission in burial law.
1.149 Then, this Consultation Paper looks at cremation law. Chapter 10 provides an outline of cremation law. Chapter 11 looks at the cremation process, including applications. Chapter 12 considers where cremations can take place, including the rules on the siting of crematoria. Chapter 13 considers the law on the treatment of ashes after they have left a crematorium. Finally, Chapter 14 explores the potential impact of our provisional proposals.
