Federation Of Family History Societies

Legislation Monitoring

Outcome of Consultation on Burial Law

 

In 2004, the Home Office issued Burial law and policy in the 21st century: the need for a sensitive and sustainable approach, a public consultation paper inviting views on a wide range of issues concerning the provision and maintenance of burial grounds, and the legislative framework within which burials and exhumations are conducted.

Richard Ratcliffe, on behalf of the Federation of Family History Societies (FFHS), was among nearly 400 people who responded. A copy of his response was published on the FFHS website at the time. A post-consultation report was issued in April 2006, and in June 2007 the Government published its decisions in Burial Law and Policy in the 21st Century - The Way Forward.

Perhaps the most important question that remains to be answered is 'How will relatives be consulted regarding re-use of graves?' followed closely by 'What steps will be taken to record inscriptions and images of graves and burial grounds before any steps are taken to allow re-use?'. Perhaps there should be a Government website where adequate notice of intent has to be posted. This could be monitored by family history societies and others with an interest in burial grounds. Putting an announcement in the local press is desirable but hardly sufficient.

The Introduction to the Government's publication contains the following observation:

"In most cases, the Government has concluded that it agrees with the majority of responses. For example, the case for enabling the re-use of old graves, keeping local authority responsibilities for burial grounds at their present levels, and improving through advice, rather than regulation, the way in which burial grounds are provided and maintained, have all been accepted. In a few cases, the Government has decided that the favoured course of action would not be justified on grounds of cost or practicality, and does not intend to pursue the proposals (for example, the creation of new statutory obligations to provide burial facilities or statistical data, and the development of new inspection or enforcement arrangements). In a number of other cases, the Government believes that there may be additional work required in order to refine the proposals, assess costs or other implications, or to develop practical implementation solutions. (This includes the handling of remains of archaeological interest, the regulation of the development of disused burial grounds, and the maintenance of old churchyards.)"

In a ministerial statement annexed to the Government's publication, Harriet Harman writes:

"It is right to expect sustainable, high standard, burial facilities for our communities. Yet, in some areas there are difficulties in finding sufficient, local, space for new graves. Maintaining existing old burial grounds can also present particular problems.

One solution which the Government has been urged to consider is the re-use of burial grounds after a suitable lapse of time. It is a solution which can offer sustainable land use for the future, and the prospects of keeping burial facilities in good order and near to the communities they serve. It is an option which has received wide support.

The Government is now satisfied that it would be right to enable graves to be re-used in this way, subject to appropriate safeguards. For example, no grave should normally be re-used unless the last burial took place at least 100 years before. And families should have the opportunity to defer re-use of their relatives' graves for at least another generation.

We therefore intend to introduce measures which, using powers available under the Deregulation and Contracting Out Act 1994, will allow local authorities to re-use graves in their cemeteries, if they wish. At the same time, we will develop, in consultation with burial professionals and others, good practice guidance on the re-use of old burial grounds, the provision of burial space generally, and the maintenance of existing burial grounds."

The full text of Burial Law and Policy in the 21st Century - The Way Forward can be downloaded from the Internet at www.justice.gov.uk/docs/burial-law-policy.pdf and Burial law and policy in the 21st century: the need for a sensitive and sustainable approach is available at www.dca.gov.uk/consult/buriallaw/buriallaw_cp.pdf.

 

In the remainder of this paper Roger Lewry has included an extract from the questions originally asked in order to give meaning to the responses, repeated the responses given by Richard Ratcliffe on behalf of FFHS, and summarised the Government's decisions.

CONSULTATION QUESTION 1. Asked a) Whether there should be a single statute to establish the broad framework in which burial grounds should operate; b) What aspects that broad framework might or ought to include (and what might be better left to other areas of law, such as planning); c) Whether there should be exceptions for different providers, or different types of burial ground, and, if so, what those exceptions might be.

FFHS RESPONSE TO QUESTION 1. The FFHS believes that it is better to have a single statute to cover all burial grounds as present legislation is inconsistent and lacks clarity. If Regional Government becomes a reality then the new Regional Councils should become responsible for oversight of the Burials Legislation, which should include consideration of burial grounds/areas for ethnic groups.

GOVERNMENT DECISION REGARDING QUESTION 1. The Government will not introduce new legislation, but will work more closely with the Church of England towards more consistent provisions in consecrated land.

CONS 2. The Government would welcome views on whether provision of burial grounds should be left to the market, or whether there should be a statutory obligation on local authorities to provide burial facilities.

FFHS 2. The FFHS believes that there should be a statutory need for local authorities to provide burial grounds.

GOVT 2. No action proposed.

CONS 3. The Government invites views on whether any change to the existing discretionary powers of local authorities to provide burial grounds should be based on a requirement to make an assessment of community needs, for example, every 10 years.

FFHS 3. The FFHS supports the need for regular reviews but not as frequent as every 10 years. [15-20 years is more realistic].

GOVT 3. No new legislation.

CONS 4. The Government would welcome comments on the practicalities of requiring such needs assessments.

FFHS 4. The FFHS suggests that assessing needs could be one of the first topics to be considered by Regional Councils. Clear lines of communication should be established quickly with all interested parties.

GOVT 4. The Government proposes to develop appropriate guidance on how facilities can be provided with better co-ordination.

CONS 5. If diversity of provision is important, but it is not feasible to provide such diversity within first tier local authorities, is there a case for restricting the power to establish burial grounds to district-level authorities only, or even to county-level councils (or unitary authorities in Wales)?

FFHS 5. The FFHS believes that Regional provision would make most sense as it would help to reduce bureaucracy. There should be 4 tiers of communication at most - Parish Councils, District Councils, Diocesan Councils and Regional Councils.

GOVT 5. No changes.

CONS 6. Views on the viability and practicality of leaving responsibility for local authority burial grounds within first tier councils are invited.

FFHS 6. The FFHS believes that this would be part of a Regional strategy.

GOVT 6. No change - guidance will be developed to encourage joint working with neighbouring or higher authorities.

CONS 7. The costs of ensuring adequate provision of burial facilities are not strictly an issue for consideration within a consultation exercise on burial law, but views on the financial implications for first or second tier local authorities of any obligatory provision of burial facilities would be welcome.

FFHS 7. The FFHS believes that the costs of ensuring adequate burials facilities should be borne by the Regional Councils.

GOVT 7. No plans to make the provision of burial grounds obligatory.

CONS 8. The Government believes that while the information required can normally be expected to be provided voluntarily by the various cemetery managers, statutory authority to obtain the data would be desirable and a statutory obligation to report on the opening of cemeteries would provide an essential mechanism to ensure that central information was up to date. Views on the need for such provisions are invited.

FFHS 8. The FFHS suggests that common forms for recording data should be devised to ensure accuracy of information across all burial grounds and cemeteries. This would ease inputting data into Regional databases.

GOVT 8. No action is proposed.

CONS 9. The Government would welcome views on the case for additional regulation of the detailed aspects of cemetery operations set out in the above paragraphs, and in particular on the appropriate mechanisms for referral or appeal of any local decisions.

FFHS 9. The FFHS believes that the Home Office should have the final oversight over detailed aspects of cemetery operations but each Region should have an Appeals Committee to make local decisions.

GOVT 9. The Government proposes to discuss with burial professionals whether statutory provisions need to be revised and/or admin practices improved. Penalties for offences will be kept under review, and whether new offences are needed.

CONS 10. The Government would welcome views on whether a statutory obligation to bury or otherwise dispose of those who have died should be created.

FFHS 10. The FFHS believes that the Public Health Act 1984 needs revising to provide a comprehensive framework for disposal of those who have died.

GOVT 10. The Government thinks responsibilities need to be clearer - but not sure what they should be!

CONS 11. The Government believes that there should be scope for improving the standards of maintenance, restoration and safety in burial grounds through more precise definitions, reinforced through more effective staff training and enforcement measures, underpinned by guidance and new funding schemes. Views are invited on whether this is the right approach.

FFHS 11. The FFHS believes that there should be clear guidelines regarding the maintenance, restoration and safety of all burial grounds. These will raise funding issues with Diocesan authorities and District Councils that will need to be addressed.

GOVT 11. To be dealt with by guidance rather than legislation. Seen as a local responsibility.

CONS 12. The Government considers that, on the whole, service standards can be improved by guidance rather than regulation, especially where it may take time for standards to be established and bedded in. But views would be welcome on this.

FFHS 12. The FFHS believes that best standards / best practice is likely to be more popular than regulation for standards of burial ground service. A time limit to reach best practice level might be necessary to ensure compliance with legislation to follow for the dilatory authorities.

GOVT 12. Guidance and training to be the way forward.

CONS 13. The Government does not believe that it would be the task of an inspectorate to undertake all these functions, although, if such a body was established, it might well contribute to policy development, standard setting, training and research needs. Views would, however, be welcome.

FFHS 13. The FFHS suggests that Regional Inspectors should be appointed to ensure that best standards are being achieved in all burial grounds, with annual reports to be made available for public scrutiny.

GOVT 13. Inspectors not seen as the answer. Most burial ground operators are local authorities, which are subject to local democratic accountability and the oversight of the Local Government Ombudsmen. For non-local authority burial grounds, the Government believes there to be scope for self-regulatory schemes for dealing with concerns and complaints, and intends to explore the prospects for developing effective voluntary arrangements.

CONS 14. Views are invited as to whether the case for an inspectorate has been made out, whether the costs are likely to justify the benefits, and whether the costs might more appropriately be recovered from the industry, rather than from the taxpayer, perhaps through a system of licensing cemeteries.

FFHS 14. The FFHS is very concerned about current safety standards in churchyards and cemeteries. There is presently considerable confusion regarding the safety of tombstones and larger family graves, many dating from the 19th Century. The FFHS believes that there must be clear guidelines concerning the safety of tombstones and the disposal or otherwise of unsafe tombstones. Any removal of tombstones should be accompanied by photographic and written records which should be kept for future generations.

GOVT 14. See response to Q13.

CONS 15. The Government believes that it is right to continue to protect buried human remains from unauthorised disturbance. Where statutory provision has been made for remains to be exhumed or removed, it is important that the remains should be treated at all times with dignity and respect, however old the remains might be. The Government believes that disturbance may be justified only in limited circumstances: • in the interests of justice (for example, exhumation on the order of a coroner) • for personal reasons by the next of kin of the deceased • on grounds of public health or nuisance • in the public interest (in connection with site developments which have public or other planning consent) • for scientific purposes (eg for archaeological research) or • for other exceptional reasons (the case for exhumation for the purpose of re-use of old graves is discussed at page.

FFHS 15. The FFHS agrees with these sentiments.

GOVT 15. No change

CONS 16. The Government would welcome views on whether these grounds are too narrow (or too wide).

FFHS 16. The FFHS considers that these sentiments are reasonable.

GOVT 16. See response to Q15

CONS 17. The Government would welcome views on the case for licensing the disturbance of all human remains, cremated or otherwise, which have been interred or otherwise given a permanent resting place.

FFHS 17. The FFHS does not see the need to change the present licensing system.

GOVT 17. Existing legislation allows wide discretion to the Secretary of State; any change of practice would be discussed with the industry.

CONS 18. The Government would welcome views on whether: • authority to licence the exhumation of remains should be retained centrally by the Home Office (now the Ministry of Justice) • such authority might be delegated to the local burial authority/burial ground manager • the criteria for the grant or refusal of licences should be regulated in statute • there should be a formal appeal mechanism • fees should be charged or chargeable • procedures and criteria should be more closely aligned with those relating to Bishops' Faculties • archaeological remains should be subject to the same regulation or be unregulated or more lightly regulated.

FFHS 18. The FFHS believes that Central control over all these suggestions should remain with the Home Office.

GOVT 18. The Government agrees that authority to exhume remains should be a matter for central government. The case for charging for licences will be considered. Consistency with Church of England views will be explored.

CONS 19. It would also be helpful to have views on: • what the criteria should be for the grant of licenses or faculties • how old buried remains might need to be to justify any relaxation of the regulation of their disturbance.

FFHS 19. The FFHS believes that remains must be over 100 years old before there is any relaxation of disturbance regulations.

GOVT 19. The Government does not propose to relax the current practice except for archaeological interest. [Home Office practice in considering applications is to grant licences provided the consent of the burial ground manager, the grave owner, and the next of kin (normally interpreted as for probate purposes) is forthcoming, there are no known legitimate objections, and the application is for personal family reasons. The consent of the next of kin is usually dispensed with where the remains were buried 100 years or more previously, and applications involving archaeological remains are normally granted without consents other than from the landowner (unless the exhumation appears to be in connection with the development of the site, where other legislation may apply).]

CONS 20. Views are invited on the case for the delegation of authority for the removal of remains in these circumstances, and to whom such authority might be delegated.

FFHS 20. The FFHS believes that the Home Office should have the final authority regarding all cases of exhumation.

GOVT 20. The Government does not plan to delegate except for re-use - see Q22.

CONS 21. The Government believes that statutory provision to require the removal of remains before a burial site is developed reflects a proper balance between the need for respect towards those who have died, sensitivity towards the bereaved and their descendants, and the interests of public and private sector developers. However, views would be welcome.

FFHS 21. See reply to Q19.

GOVT 21. The Government intends to work with the construction industry and other interested groups to identify how legislation could be changed to achieve more consistency and more sensitivity towards relatives and descendants of the deceased.

CONS 22. Given the sensitivities on this issue, the Government believes that the arguments in favour of the re-use of graves need to be tested, in particular, so as to gauge public concerns and acceptability, and to determine the practicality and economics of any new approach, having regard to the need for any exceptions and safeguards. Comments are therefore invited on the principle as to whether the disturbance of remains would be justified in the interests of preserving and funding local, viable burial grounds, and reducing demands for new land for burials.

FFHS 22. The FFHS is aware that the re-use of graves is a very sensitive issue. It believes that the 100 year rule should apply before any attempt is made to re-use a grave or section of a graveyard or cemetery. This should apply from the burial of the last burial in that section. In the event of a section of a grave yard or cemetery being re used, the section should be recorded photographically and an accurate transcription of all gravestones made before the site is cleared. The FFHS would be willing to help in this work if requested to do so.

GOVT 22. The Government is persuaded that re-use of graves is justified in principle, and plans to enable local authorities to authorise the excavation of old graves using exhumation licences. See Q23 regarding keeping records.

CONS 23. Comments are invited on the potential impact of re-using graves on the character of a burial ground and how any adverse effect might be mitigated. Views would also be welcome on how tombstones and memorials should be dealt with where graves were to be re-used (for example, new or additional memorials, additional names on existing memorials or the details of the further burials to be recorded in books of remembrance).

FFHS 23. Many Family History Societies have already carried out extensive surveys of churchyards and cemeteries and this information could be used to advantage by the Regional authorities.

GOVT 23. It is clear that public support for the re-use of old graves will be dependent in part on how such policies are put into practice. While it will be important for decisions on these matters to be taken locally, public confidence is likely to be upheld if there is a broad framework of guidelines which promotes consistency of approach within existing resources. Work on devising an appropriate regulatory framework, and practical guidance, is in hand and will be informed by the outcome of relevant pilot studies.

CONS 24. The Government would welcome views on whether the age of the grave should be the appropriate criterion to determine whether a grave might be re-used. If so, is 100 years the appropriate length of time? Should it be longer, or shorter?

FFHS 24. See reply to Q22.

GOVT 24. The lapse of time since the last burial is to be 100 years in normal circumstances but the Government sees a case for 75 years where space is particularly short. Again, this is to be a local decision with accountability.

CONS 25. Alternatively, might a more scientific approach be adopted which determined that only graves containing skeletal remains were used? Would this be practical? (Decomposition would mainly depend on local soil conditions, might not be accurately predictable, and might involve a period of time considerably longer or shorter than 100 years.)

FFHS 25. The FFHS considers 100 years to be the minimum period before a grave might be re-used but this could be longer in some local areas based on local soil conditions.

GOVT 25. No intention to use scientific approach.

CONS 26. The Government believes that, if graves were to be re-used, the 'lift and deepen' method would be the preferred approach. Views are invited on any foreseen disadvantages of this method, or advantages of alternative methods.

FFHS 26. The FFHS supports the 'lift and deepen' method suggested in the consultation paper.

GOVT 26. 'Lift and deepen' is seen as the preferred method.

CONS 27. It would also be helpful to have views on whether particular methods of re-using graves should be prescribed, or whether burial ground managers should be free to adopt whatever method appeared appropriate according to local circumstances.

FFHS 27. The FFHS believes that there should be national guidelines about the re-use of graves, but local burial ground managers should be able to appeal to their Regional Appeals Committee if they think they have a good case for a local decision to re-use a burial area.

GOVT 27. The Government does not plan to restrict the options open to operators.

CONS 28. The Government would welcome comments on any or all of these factors.

FFHS 28. The FFHS believes that the Regional Councils should consider these assumptions as part of their 15-20 year review of burial grounds [see Q3].

GOVT 28. <The response document seems to be incomplete here!!!>

CONS 29. The Government believes that local consultation about any re-use of graves would be essential, but that it would be important for such exercises to be undertaken on a consistent basis. Comments are invited on the need for consultation and what might properly be addressed in such consultation.

FFHS 29. The FFHS believes that local consultation about the re-use of graves should be encouraged, but ultimately decisions would have to be made by Regional Councils or by the Home Office in the final analysis.

GOVT 29. Guidance will be issued and consultation with relatives and key organisations will be seen as a satisfactory minimum. Local public consultation will not be insisted upon.

CONS 30. Whether and how such consultation might usefully be undertaken jointly with other burial ground providers would be appreciated.
FFHS 30. See reply to Q29.

GOVT 30. See Q29

CONS 31. The Government would welcome views on the proposed exceptions to any re-use arrangements, in particular: • whether the exceptions proposed are the right ones, or whether there should be others • whether it would be right to enable exceptions, in effect, to be purchased • whether the criteria for identifying exceptions are sufficiently clear, or flexible, to be effective • whether the need for sustainable land use is such that exceptions should not be permitted in any circumstances.

FFHS 31. The FFHS considers that the exceptions listed are appropriate.

GOVT 31. The Government thinks that exemptions [should this be exceptions?] can be accommodated.

CONS 32. The Government would find it helpful to learn what importance ought to be attached to the introduction of good cemetery practices prior to any adoption of a re-use regime.

FFHS 32. The FFHS believes that any legislation should encourage best practice as the minimum standard for all cemeteries. A time limit should be given for all cemeteries to reach this standard before any permit is given for a cemetery to re use a section of graves.

GOVT 32. See Q23

CONS 33. The Government would welcome views on: • whether there is a need for additional regulatory arrangements before any re-use schemes might be introduced • what such arrangements might require (for example, regular inspection of cemeteries to assess general compliance with burial legislation or one-off inspections to determine suitability or competence to operate a re-use scheme) • whether they might need to cover all burial bodies (including churches and private cemetery owners) • how best they might be put in place (for example, a new Government inspectorate, self-regulation or the development of other regulatory bodies for the purpose).

FFHS 33. The FFHS considers that these suggestions should be referred to the Regional Councils with the help of their inspectors after the initial survey of regional provision has been carried out.

GOVT 33. See Q23

CONS 34. The Government proposes that, were it to be persuaded that the re-use of graves should be established, it would be right to leave decisions about whether to use such graves entirely to the individuals and families concerned. However, it would seem appropriate to ensure that the public was properly informed about the nature of any grave or grave space that might be purchased, both as to the fact that the grave had been previously used and that it would be expected to be re-used again in due course. It would also be important to ensure that information about the availability of any virgin burial facilities was provided in response to enquiries or applications to purchase a grave.

FFHS 34. The FFHS believes that there is scope to use empty spaces in many churchyards and cemeteries. There are spaces between graves that could be used in the first instance without disturbing existing graves, apart from removing old and eroding gravestones. This should be explored as the first way of re using old graveyards. These graves could also be dug to a greater depth than the earlier graves.

GOVT 34. See Q23

CONS 35. Should the practice of closing Church of England churchyards which are full by Order in Council be changed? • If so, in what circumstances should decisions be made? Where a churchyard is full, on what criteria should it be decided whether it should be closed or provision made for re-use? In particular, what weight should be attached to the importance of the churchyard as an open space and the conservation of its character, including existing monuments? • Should there be a procedure for declaring a churchyard full without formally closing it, so that special steps may be taken for its future use? • Where a churchyard is full, should the Church of England and Church in Wales authorities be given statutory powers to require the relevant local authority to provide the cost of preparing the ground for re-use? • Should there be provision for reopening closed churchyards at the request of the church authorities? If so, in what circumstances should such decisions be made and on what criteria?

FFHS 35. See reply to Q34. Old and eroded gravestones should be removed in the interests of safety unless members of the family wish to restore them and bear the cost of future maintenance. Families should be given the opportunity to decide - if they can be traced - before any stones are removed.

GOVT 35. The Government thinks it right to consider the scope for improving the existing arrangements for closing churchyards. It is speaking to the Church of England about legislation to enable re-use of closed churchyards.

CONS 36. To what extent should special provision be made on theological, pastoral or other grounds for the re-use for burials of land, which has been consecrated for Christian burials by the Church of England or Church in Wales but which is part of a municipal or private cemetery rather than a churchyard, or for re-use of land set aside for burials according to any other particular religious tradition?

FFHS 36. The FFHS considers that this question is a matter for discussion between the Churches and the Home Office.

GOVT 36. The Government thinks objection from a local representative body for the denomination or faith concerned should be regarded as paramount.

CONS 37. The Government takes the view that unauthorised disturbances of human remains is, and should remain, a serious matter; that there is a continuing need for buried remains to be protected within the criminal law and that there is widespread public support for such protection. Views on whether the re-use of graves would be likely to undermine respect for the dead and, if so, suggestions as to how this might be mitigated, would be welcome.

FFHS 37. The FFHS agrees that the unauthorised disturbance of graves is a very serious matter and graves must continue to be protected within the criminal law. There may be some cases for re using old graves but every effort should be made to contact living relatives before a section of a graveyard or cemetery is brought back into use. The response in Q34 applies here as well.

GOVT 37. The Government has noted that the majority did not think re-use would undermine respect for the dead, as long as it is introduced in an appropriate manner.

-o0o-

The Government noted that one respondent thought those interested in family history would be prepared to pay more for relevant information, and that this income should go to the upkeep of the graves. Apparently decisions on additional sources of funding are essentially for individual burial ground operators.

Although there was reference to a lighter touch for archaeological interests, no detail was included.

27 October 2007
Roger Lewry
Legislation Monitoring Officer