1 The legislation relating to burial and cremation in Scotland is in need of consolidation and modernisation. The main primary legislation is old and increasingly inadequate for the needs of 21st Century Scotland. Burial legislation is over 150 years old, while the legislation covering cremation is over 100 years old. In addition, recommendations made by various expert groups in recent years have further hastened the need for the legislative framework to be overhauled and updated.
2 Relatively few amendments have been made to the Burial Grounds (Scotland) Act 1855 since its introduction, and it is no longer sufficient for modern purposes. The Act places duties on administrative units which no longer exist, such as Parochial Boards, and does not give current Burial Authorities the power they require. New powers are needed to ensure that modern practices can be implemented so that burial remains an affordable and realistic option.
3 In contrast, the Cremation Act 1902 and the Cremation (Scotland) Regulations 1935 have been amended many times, with the effect that the legal framework for cremation can be confusing and difficult to follow. A series of amendments have sought to address various issues and maintain the currency of the legislation, but recent events have demonstrated that gaps remains. These require to be filled to provide a comprehensive legislative framework for cremation in Scotland.
4 The Scottish Government will bring forward new legislation to address these issues. The proposed Burial and Cremation (Scotland) Bill (this may not be the final title of the Bill) will provide a modern and comprehensive legal framework for burial and cremation in Scotland, including other methods of respectfully and sensitively disposing of human remains, as well as various related topics. The bulk of the proposals which will form the basis of the Bill are based on the recommendations of two groups.
Burial and Cremation Review Group
5 In 2005 the then Minister for Health established the Burial and Cremation Review Group with the following terms of reference:
'To review the Cremation Acts of 1902 and 1952 (and the Cremation (Scotland) Regulations 1935, as amended) and the Burial Grounds (Scotland) Act 1855 as amended, and to make recommendations on how the legislation could be changed in order to better serve the needs of the people of Scotland. This would, where appropriate, recognise the established role of the Procurator Fiscal Service, and take account of policy developments in England (specifically the Shipman Inquiry's work on death certification) and international good practice.'
6 The Group was chaired by Sheriff Robert Brodie, and included representatives from the Crown Office, the medical profession, the legal profession, the funeral industry and religious and faith groups, among others. The Group issued a report in October 2007, which contained 33 recommendations. A consultation on the Group's recommendations took place in 2010. The recommendations are listed at Annex A of this consultation paper.
7 Many of the recommendations concerned improvements to the certification of death in Scotland. Following consultation, these were implemented by the Certification of Death (Scotland) Act 2011. Other recommendations relating to burial and cremation were not implemented. Although the 2010 consultation considered these issues, those recommendations not yet implemented are again being considered as part of this consultation.
8 The responses to the original consultation were published in September 2010. These will be taken into account when developing policy, but the length of time since the issues were last considered, as well as the wider context of subsequent events, warrants a fresh examination. Accordingly views are again sought on several of the Group's recommendations with a view to implementing them in the proposed Bill.
Infant Cremation Commission
9 The other recommendations considered in the consultation paper are those made by the Infant Cremation Commission. In response to concerns about previous practices in the cremation of infants, in April 2013 the Minister for Public Health announced the creation of an independent Commission to examine the policies, practice and legislation related to the cremation of infants in Scotland. The Commission was chaired by the Rt Hon Lord Bonomy and considered a range of issues. It published its report in June 2014, making 64 recommendations, all of which were accepted by the Scottish Government. It is intended to take many of these forward in the Burial and Cremation (Scotland) Bill, while others which do not require legislation are being taken forward under the remit of the National Cremation Committee, which was established recently in line with the Commission's recommendations.
10 A number of other issues have arisen separately from these reports, and these will also be considered in this consultation paper and, depending on the views expressed in the consultation, implemented through the Bill.
11 Broadly speaking, this consultation paper is divided into the recommendations from the Burial and Cremation Review Group and the Infant Cremation Commission. In general, the issues which each group considered lend themselves to a natural split. In particular, many of the recommendations from the Commission are self-contained and require detailed and specific examination, not least those which relate to pregnancy loss. In some areas - for example, the right to instruct the disposal of a body - both the Group and the Commission examined the same issue, although in different contexts, and the consultation paper considers such issues collectively.
The consultation process
12 The consultation paper sets out a range of proposals and approaches in response to the recommendations of the Burial and Cremation Review Group and the Infant Cremation Commission. Throughout the consultation paper, views are sought on certain issues and specific questions are asked. Consultees are invited to provide as much information as they wish in answering questions. More general views are also welcome, and consultees are invited to express their views on any issues they feel should be considered but which are not discussed in the consultation paper.
13 All responses received to the consultation will be taken into consideration in developing the Burial and Cremation (Scotland) Bill. In line with standard Scottish Government practice, consultation responses will be published online where the consultee has given permission. A Respondent Information Form (RIF) is included in the consultation paper for that purpose.
Email: Joseph Ewesor