Burial Regulations Working Group minutes: January 2020

Attendees and apologies

In attendance

• Edinburgh Council
• Brendan Day, Federation of Burial and Cremation Authorities (FBCA)
• Julie Dunk, Institute of Cemetery and Crematorium Management (ICCM)
• Katy Huxtable, Commonwealth War Graves Commission (CWGC)
• Rachael Lusk, Policy Officer, Scottish Government
• Katrina McNeill, Policy Manager, Scottish Government (chair)
• Joseph Murren, National Society of Allied and Independent Funeral Directors (SAIF)
• Fiona Porter, North Ayrshire Council
• Tim Purves, William Purves Ltd
• John Profitt, Edinburgh Crematorium Ltd
• Lorna Richardson, Orkney Council
• Elaine Schendel, East Ayrshire Council
• Yvonne Scott, Shetland Islands Council
• Robert Swanson, Inspector of Cremation

Teleconference

• Shirley Bruce, Aberdeenshire Council
• David MacLeod, Western Isles Council

Apologies

• Binning Memorial Wood 
• David McColl, Glasgow City Council
• Liz Murphy, Fife Council

Items and actions

Welcome and introductions

Members were welcomed to the meeting and introductions were made.

Regulations

Five distinct sets of regulations were outlined:

• burial ground management
• burial application forms
• exhumation
• private/ home burial
• reuse of lairs

It was agreed that this meeting should focus on burial ground management, burial application forms and exhumation, with a further meeting on home burial and reuse of lairs. 

Burial ground management and exhumation are affirmative regulations, i.e. require the approval of Parliament in order to come into force. The remaining three sets of regulations are negative, i.e. made and brought into force, but which Parliament can annul by a vote in the Chamber. 

When the cremation regulations were developed, they included the statutory application forms. As a point of learning, it was suggested that the (affirmative) burial management regulations should be made separate to the (negative) burial application forms. Should something on the forms require to be changed in future, it is more straightforward to amend negative regulations. The group agreed with this approach.

Management of burial grounds

Most burial authorities (BA) already have rules and regulations for burial ground management, as well as standards of service, but these vary in terms of content and detail.

In the Western Isles, for example, some burial grounds are managed by the community, through a cemetery committee run by volunteers. Certain burial grounds have been managed in this way for hundreds of years, and provide a low cost option for communities. There is little resource behind these types of burial grounds, and are often managed without an office.

A distinction was also drawn between active, inactive and historical burial grounds. For example, there have been some calls to allow grasses to grow longer in inactive burial grounds, to encourage biodiversity. The regulations should be flexible enough to allow the BA to tailor the management rules accordingly.

Discussion was opened to the group about what should be included within the regulations. The Inspector of Cremation emphasised the importance of getting the content right; the regulations become law, and must be complied with. 

The group agreed that the regulations should require each BA to have a management plan. Whilst the regulations should list the broad areas to be included in a BA’s management plan, it should be up to the BA to develop the management plan in a way which shows how the BA will effectively manage each burial ground. An Inspector of Burial will inspect against the 2016 Act, the regulations and the management plan. 

For comparison, the Inspector of Cremation advised that some cremation authorities have plans which are three or four pages long, whereas others are 40 pages long - either is fine, as long as the management plans meet the requirements of the regulations. The plan must be accessible for inspection by the inspector and also for any member of the public. 

When discussing burial ground layout, some members thought that it should be a requirement for the BA to have a scaled plan of the burial ground. Others thought accurate records would be sufficient, however, the challenges around accurate records were evident, particularly where burial grounds were previously managed by private companies which stopped trading and responsibility for the burial ground fell to the local authority with little or no records passed on. For historic burial grounds, there are sometimes no records at all and burial ground boundaries are not always clear. 

One of the purposes of these regulations is to ensure that, going forward, record keeping is fit for purpose. 

It was agreed that the regulations should not set out any particular requirements around religion. It is for each BA to decide what provision to make for different faiths on a supplementary form. Members asked whether BAs would need to take specific measures to comply with the Equalities Act. This was not within the scope of these regulations, and the regulations could not be used as a basis for an equalities challenge. 

Local authority BAs will be required to publish fees, but this is not the case for private BAs, which have private contracts with customers. However, private BAs will be encouraged to publish information about their fees. 

Training of employees was discussed. The Inspector of Cremation advised that, for cremation authorities, information is included within management plans such as: number of employees, their duties, and what training includes. The management plan can be amended to reflect new training requirements. It was agreed that regulations would not detail anything specific, i.e. will not dictate particular training or qualification requirements, as this will not be appropriate for all BAs and will quickly become outdated.  Instead, it will be up to the BA to satisfy themselves that staff are adequately trained and this should be outlined in the management plan. 

The group discussed what they do to contact lair owners about making headstones safe. Current procedures differ considerably. Some BAs have taken the decision to lay headstones flat, and do not attempt to trace lair owners. Other have tried to contact the lair owner first to give an opportunity to repair and/or use public notices and open days to help inform. Some have laid headstones flat, and reinstated them at the BA’s expense. Others have placed wooden bracing onto memorials as a safety measure. As many lair records are historical, and do not have up to date lair holder records, it is sometimes impossible to trace lair owners individually.

Any conditions or restrictions on the design/ standard/ size of memorials will be for BAs to decide and could be included within management plans and/or conditions of sale. Orkney, for example, now stipulate that headstones should meet British standards.

Action: SG to draft content on the burial management regulations and circulate to the group for comment

It was suggested that the Commonwealth War graves Commission (CWGC) should be specifically referenced in the regulations so that any action taken by any BA which effects war graves, memorials and other furniture provided by the CWGC will only be done so in consultation with the CWGC. Private family memorials can also be war graves and can sometimes be missed.

It was not clear whether the CWGC falls within the definition of a BA in the 2016 Act. The CWGC own and administer sites solely for war graves, e.g. Lyness Royal Naval Cemetery. The CWGC never charge a fee, which raises questions around whether the sites can be defined as ‘burial grounds’ under s1 of the 2016 Act. Whilst the CWGC do not charge a fee, a funeral director may charge for their part in the arrangements, and some members thought this charge may potentially trigger the ‘burial ground’ definition.

Action: SG to confirm whether sites owned by the CWGC fall within the definition of ‘burial ground’ and therefore whether the CWGC falls within the definition of a ‘burial authority’.

Application for burial

The group discussed the content of the burial application form. There was general consensus that separate forms were not required for burials, there should be one standard form. 

The group advised that risk of infection should not be included on an application form, this information is already included on the form 14. 

The right to apply for burial was discussed and it was noted that the order of priority in section 65 of the 2016 Act will apply in the same way that is does for applications for cremation. The applicant, if not the lair owner, will require the permission of the lair owner to open the lair, and will be required to obtain the lair owner’s signature either on the application or otherwise provide proof of this authority when submitting the application. 

The group discussed whether proof of right of burial is required alongside the application. This is relatively straightforward where the deceased is the lair owner. However, there are sometimes difficulties where a lair owner has died and there is an application for a subsequent burial in the lair. The right of burial is subject to the usual rules of succession. However, some BAs require a deed of transfer before proceeding with the burial, which can cause delays to the funeral. Some BAs allow a degree of discretion if the certificate of right of burial cannot be produced. Many thought that the burial should be able to go ahead without a deed of transfer with the applicant making a declaration on the application form that they have a right to apply for the burial. 

Action: SG to consider whether a deed of transfer is required alongside an application for burial

It was agreed that a Form E1 from the Crown Office is not required as an accompanying document for burial. It is only relevant for cremation.

 It was also agreed that a cremation certificate should not be listed as a statutory requirement – as there would need to be a declaration that there is a full set of ashes. The BA will ask for a cremation certificate on a supplementary form. 

Other documentation to be listed in the application form should include forms where the death has occurred in another part of the UK or abroad, such as those listed in the cremation application form.

Action: SG to suggest content of application form.

Register of burial

The group recognised the opportunity to revise and update the register of burial. It was thought that the register should reflect the application form, as the information on the application will populate the register. 

At the moment, burial registers record age of the deceased only. It was agreed by most members that date of birth would be a useful addition and this reflects the cremation register. 

It was suggested that, in order to modernise the registers, there could be one single electronic register i.e. one programme which holds sub-registers. However, a distinction was drawn between the register of burial (a public register) and the register of right of burial (not public and covered by data protection legislation). It would be up to the BA to hold the information in the way they see fit, so long as the prescribed information is covered. 

Action: all members of the working group to consider the current content of the burial register and whether it needs to be updated (as happened with the cremation register). 

Members asked whether burial of ashes in a crematorium’s garden of remembrance would be subject to the burial regulations. Different factors were considered such as whether identifiable plots are sold, whether a fee is charged for the family to attend etc. More consideration on this point is required, particularly around what is covered by the cremation regulations and what is covered by the burial regulations.

Action: SG to consider whether a crematorium’s garden of remembrance falls under the definition of a burial ground 

The group are invited to provide any further comments on the content of the regulations and the application form via the team - email.

Register of right of burial

There was a difference of opinion in terms of whether the right to erect a headstone lies with the lair owner. For some BAs, it is only the lair owner who has the right to erect a headstone. Others argued that this was impractical, permission should be sought from the lair owner where possible but shouldn’t strictly be required. In England, the right to erect a memorial is normally issued with the exclusive right of burial under Article 10 of the Local Authorities Cemeteries Order 1977.  It is the lair owner who must give permission, however a memorial may be fixed by someone else where they can ‘satisfy’ the BA they are acting on behalf of the lair owner, or the owner can no longer be contacted.

The CWGC will always try to seek permission of the lair owner before erecting a headstone, but there is heavy reliance on the register of right of burial and it is not always possible to trace the owner. If any complaints are received, the CWGC will arrange to have a headstone removed. 

Under the primary legislation, the right of burial will last for 25 years. This timescale makes it easier to maintain contact with lair owners. At the end of the initial 25 year period the right holder must be given the opportunity to renew the right for further periods of 10 years. A charge for this renewal is intended to be a nominal administration fee, not a resale of the right at full price. 

The extinction of the right of burial does not apply to any right held by the CWGC. It was suggested that war graves should be referenced in the register of right of burial so that BAs are aware, particularly as burial rights not owned by the CWGC may expire.

When a right of burial lapses without renewal and there is no interment in the lair, ownership falls back to the BA which can resell straight away. If a right of burial lapses and there is at least one burial in the lair already, the ownership falls back to the BA, but the BA cannot reuse the lair for 100 years under the reuse provisions (separate set of regulations). 

Section 16 of the 2016 Act requires the BA to contact the right holder “at least” 3 months before the right is due to end. The group asked whether the BA authority could contact the right holder much earlier or if the right holder can apply for an extension to the right of burial earlier than the 3 months stated in the 2016 Act, i.e. on year 23 can there be an application, in advance, for the right be extended by 10 years. 

Action: SG to consider whether extensions to the right of burial can be purchased far in advance of the 25 year or subsequent 10 year expiry date and how far in advance.

Some members queried what would happen if a right of burial had lapsed and the family came back a few years later to request a burial in the lair. Would this be classed as a renewal or would the family be required to pay a full lair price? If the former, what would be the incentive to renew after 25 years?

Action: SG to consider

The group discussed whether the regulations should specify a minimum depth at which human remains may be buried. It was recognised that shallow depths can make second interments difficult. No consensus was reached on a particular minimum depth.  The depth at which a coffin can be buried often depends on the ground conditions. Some members thought that the depth should be minimum burial ‘cover’ rather than depth, and also take into consideration if there was an appropriate covering such as concrete if the burial is at a shallow depth.  Even if minimum depth is not set out in regulations, the actual depth should still be recorded in the burial register.

Action: SG to further consider whether to include minimum burial cover in the regulations.

Exhumation

Exhumation applications at present are complicated and expensive, involving solicitors and court action. The intention is to take the process out of the court and to make the process much simpler and cheaper for applicants by becoming an administrative process with the decision made by the Inspector of Burial based on a feasibility report from the BA.

Exhumation applications are rarely rejected. Reasons to reject will normally be practical problems, e.g. inability to exhume from a common grave without disturbing other human remains, or for public health reasons. 

As BAs already undertake feasibility studies for exhumation, one proposal was that BAs could make decisions on exhumation applications from family members/ others, i.e. all applications excluding those made by the BA itself. Whilst some were in favour of this approach, most were more inclined towards the Inspector of Burial making decisions on applications for exhumation to ensure independence and consistency.

Action: Clarify the proposed lines of accountability for exhumation applications with the group at the next meeting.

Exhumation of ashes was discussed in relation to a second interment within a lair. It was suggested that an application for exhumation should not be required when ashes are simply being moved within the lair but instead the Inspector of Burial should be informed of this being done. A distinction was drawn between ashes that a BA knows about in advance and ashes that are only found upon opening the lair. For known ashes, the group discussed whether the BA should seek authorisation from the inspector in advance.  For ashes which are found on opening the lair, or where the ashes are not where the BA expected them to be, the inspector can be informed retrospectively. A final decision on this is still to be made. 

The group discussed who can apply for an exhumation. The order of priority in section 65 was suggested. Others thought that anyone should be able to apply, as long as the permission of the lair owner and next of kin is obtained. Further comments on exhumation can be sent by email (as above) and as there was not time to fully discuss exhumation we will continue the topic at the next meeting.

Action: SG to consider to discuss at next meeting.

Date of next meeting

The next meeting will take place on 25 March 2020, 10:00 – 13:00 at Victoria Quay, Edinburgh.