On 26 January 2015, the Scottish Government published a consultation inviting views on various proposals for a new Bill relating to burial and cremation:

“the legislation relating to burial and cremation in Scotland is in need of consolidation and modernisation … [t]he main primary legislation is old and increasingly inadequate for the needs of 21st Century Scotland”, [Para.1];

 “… 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,” [Para.2];

“… 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, “ [Para.3]

Readers with long memories may recall that south of the border in 2001, the Commons Environment, Transport and Rural Affairs Committee conducted an inquiry on cemeteries[1]; quoting the Home Office Minister of State’s description of burial legislation as “an unwieldy, arcane and out-of-date body of law that is ripe for reform”, it recommended inter alia “[a] complete review of the law relating to burial and cemetery management, including churchyards”, adding somewhat hopefully, “we welcome the Government’s recognition of this fact.” However, little progress has been made since 2001.

Background

The present Scottish Government consultation draws heavily upon the work and recommendations of two groups:

• Burial and Cremation Review Group, established in 2005 by the then Minister for Health: “[t]o 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; and
• Infant Cremation Commission, chaired by Lord Bonomy. This was established in April 2013 in response to concerns about previous practices in the cremation of infants, which initially focused on the Mortonhall crematorium, reviewed here, and here. Its report, published in June 2014, make 64 recommendations: all of these were accepted by the Scottish Government, and those requiring legislation will be taken forward in proposed Burial and Cremation (Scotland) Bill.

The cremation practices identified first identified at Mortonhall are not unique to Scotland, and an earlier media investigation raised concerns on the insensitive approach of some English hospitals on their treatment of the parents and their use of hospital incinerators rather than crematoria in the cases of stillbirths, miscarriages and abortions, here. Whereas the issue in Scotland was the inability of parents to receive the ashes of their children from some, but not all, crematoria, in England concerns centred on the use of hospital incinerators rather than crematoria. Although the media reports on the use of hospital incinerator as a means of disposing of foetal remains were valid, those linking this to providing the heating for hospitals were incorrect and misleading: such an application was not supported factually, and is a practical impossibility on account of the underlying thermodynamics.

Consultation

Scope

The consultation comprises 88 questions covering the following areas:

• The legislative framework
• The right to instruct the disposal of human remains
• The management of cemeteries
• Burial and cremation records
• Alleviating pressure on burial grounds
• Exhumation
• Pandemics and mass fatality events
• Informing staff of particular causes of death
• Cremation forms and procedures
• Pregnancy loss
• Cremation register
• Accreditation of Cremation Authority staff
• Inspector of crematoria
• Regulation of the funeral industry
• Funeral poverty

Under these broad headings the consultation seeks views on a number of important issues, some of which are controversial. Those relating to the legislative framework, (Q1 & 2), include:

• extending statutory controls to: private cemeteries and crematoria, (Q3); “home burial”, (Q6 & 7); “environmentally-friendly” methods of disposal, (Q5);
• future alternatives to cremation, such as such as Resomation® and Promession[2], (Q4 & 9);
• the continuing illegality of private cremation, (Q8);
• the definition of “ashes”, (Q10);
• minimum distance between crematoria and housing, (Q11 & 12).

The right to instruct the disposal of human remains, (Q13 to 16), covers a lacuna specific to Scots law identified in the Mortonhall inquiry, and the management of cemeteries, (Q17 to 19) deals with abandoned lairs[3], unsafe memorials, and the minimum depth of graves for which there is currently no requirement.

Alleviating pressure on burial grounds is an issue common to both Scotland and England & Wales, the difference being that the Scottish government has initiated positive action: Q22 to 44 examine some of the many issues to be addressed, although here without the complicating factor of the CofE faculty jurisdiction. Likewise in relation to exhumation, (Q45 to 50), which includes the thorny issue common to both jurisdictions of exhumation for archaeological purposes.

Cremation forms,  procedural and operational matters are the subject of Q51 to Q63 and Q74 to 85, including the inspection of crematoria. Last week we noted that as part of the implementation of the Bonomy recommendations, ihe Scottish Government had announced the appointment of Robert Swanson, QPM, a Scotland’s first Inspector of Crematoria.

The sensitive issues associated with pregnancy loss at less than 24 weeks, which were the underlying causes of concern in England and Wales as well as in Scotland,  are dealt with in Q54 to 73, and those of funeral poverty in Q86 to Q88.

Responding to the Consultation

The consultation closes on 24 April. Although titled “Web only”, in addition to responding to the consultation on-line, it is possible to email or post the responses form and respondent information, Annexes D and C respectively of the pdf version. Although most questions are in a Yes/ No/ Don’t Know format, there is provision for additional information, which may be necessary where a number of questions are posed under a single heading, e.g. Q9 which poses 3 questions but provides a single check box option for the answer.

Comment

Specific issues, such as the definition of “ashes” and the role of environmental legislation, will be considered in subsequent posts. With regard to the consultation exercise per se however, a number of general points are apparent:

1. The Scottish Government is to be congratulated in tackling this complex legal area, an example that ought to be followed by the Westminster parliament.
2. In view of the disparate issues addressed, the resulting measure may need to be in the form of an enabling Act, an option which seems to be implicit from some aspects of the consultation.
3. Unusually for a consultation, there is provision for consultees to include 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. Whilst this provides the opportunity for interested parties to express their views, it introduces an additional level of complexity in the assessment of an already wide-ranging consultation and in the resultant formulation of the statutory provision(s).
4. The absence of cross-referencing between legislation associated with burial and cremation and the overarching environmental legislation is an important omission. Legislators should not lose sight of the fact that cremation and potential alternatives are basically industrial processes and their primary process controls should fall within the same regimes.

[1] Cemeteries, Environment, Transport and Regional Affairs – Eighth Report, Session 2000-01, at para. 128.

[2] Resomation®: a water and alkali based method – alkaline hydrolysis – which breaks the body down chemically; Promession: a freeze drying technique, which is similar to Cryomation®, a method based upon the use of liquid nitrogen and freeze drying techniques.

[3] “a piece of ground within a particular Cemetery or Burial Ground in which the exclusive right of burial is granted by a Lair Certificate”, see Moray Council, Management Rules for All Cemeteries and Burial Grounds.