Does Burial and Cremation (Scotland) Bill address the issues raised?

The Burial and Cremation (Scotland) Bill was published on 8 October following a detailed consultation of the current law relating to burial and cremation in Scotland. The Bill was further informed by the work of two groups:

– the 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

– the 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 have been taken forward in the Burial and Cremation (Scotland) Bill.

Two important legislative changes to the Scots law were proposed by the ICC with regard to the cremation of infants: there should be a statutory definition of “ashes”; and there should be statutory regulation of the cremation of babies of less than 24 weeks’ gestation. In addition, the consultation raised the possibility of other procedural changes to the law in this area, reviewed here. This post addresses the above two issues, and a review of other aspects of the Bill will be considered in a subsequent piece.

Statutory definition of “ashes”

Section 75(1) states that “ashes” is to be construed in accordance with section 36, i.e.

(1) In this Act, “cremation” means the reduction to ashes of human remains by the burning of the remains and the application to the burnt human remains of grinding or other processes.

(2) In this section: “ashes” does not include metal; “coffin” includes any type of receptacle; “human remains” includes, where remains are clothed, in a coffin or with any other thing, the clothing, coffin or other thing, [emphasis added]. 

The Explanatory Notes, which do not form part of the Bill, give the following clarification:

Section 36 – Meaning of “cremation”

99. This section defines “cremation” for the purposes of this Bill. As per subsection (1), the definition includes the burning of human remains and subsequent grinding or other processes by which skeletal remains are turned into ashes. In practice this subsequent process will tend to be cremulation, a common practice in crematoriums to grind or vibrate the bones which remain after the burning process into ashes.

100. This definition is necessary to ensure that all parts of the process are captured. It is also necessary to ensure that everything that remains after the cremation process is regarded as ashes, including any non-organic material such as the remains of clothing or the coffin, which is set out at subsection (2). Subsection (2) also specifically excludes metal from the definition of ashes; metal may remain if the coffin had metal fittings, or if the deceased had metal implants … [emphasis added].

Losses during pregnancy

Sections 50 to 55 address the general issue of losses during pregnancy rather than the cremation of babies of less than 24 weeks’ gestation per se, as suggested in the ICC Report. With regard to the latter, the practicalities of the cremation of infants may be addressed within Codes of Practice issued by the Scottish Ministers under section 67(1)(b),

67 Codes of practice

(1) The Scottish Ministers may issue codes of practice in relation to each of the following … b) the carrying out by a cremation authority of functions conferred by or under this Act relating to the management and operation of a crematorium …

and through the duties imposed on Cremation Authorities under section 37,

37 Cremation authority: duties

(1) The Scottish Ministers may by regulations make provision about: (a) the management and operation of crematoriums; (b) the maintenance of crematoriums; (c) the disposal of ashes by cremation authorities; and (d) persons employed by cremation authorities (including in relation to training, qualifications and membership of professional bodies)

Section 50 applies: where a pregnancy loss occurs; at or before its twenty-forth week; the fetus does not breath or show any other signs of life; and where the woman is in the care of an “appropriate health authority” [i.e. an independent health service or Health Board, s50(6), at the time when the pregnancy ends]. Sub-section 50(3) provides that where the woman authorizes the appropriate health authority to make the arrangements for the disposal of the remains of the fetus, the authority must inform her if it would not be reasonably practicable for it to arrange for the remains to be disposed of in a particular way. Should she opt for the health authority to make the arrangements, the woman may still choose the method of disposal.

The health authority to is required to attempt to ascertain the woman’s wishes before the expiry of the “initial period”, which is defined at subsection (6) as being within 7 days of the pregnancy loss occurring. Whilst expected to try to find out the woman’s wishes, the health authority is not under an obligation to establish them; nevertheless, it must record any such decision, or the absence of a decision, subsection (4).

Section 51 concerns changes in the arrangements where: the appropriate health authority has given a woman the opportunity to make a decision under section 50(2); the remains have not been disposed of; and the relevant period has not expired. The “relevant period” for the purposes of this section is defined as the period of five weeks after the expiry of the initial 7-day period, section 50(6).

Individuals and health authorities that are authorised to make arrangements for disposal of the fetal remains are addressed in sections 52 and 53, respectively; section 54 details the duty of the appropriate health authority where a pregnancy loss subject to section 50(1)) has occurred more than 6 weeks earlier and no arrangements have been made under section 51 or 52 for the disposal of the remains of the fetus; and section 55 relates to the its keeping and maintaining of a register of the disposals of pregnancy losses.

Comment

The following analysis relates to the Bill as presented; furthermore, drafted in the format of an enabling Act, some aspects may be included in subsequent Regulations as required by sections 73 and 74, which detail the further consultation required on specific sections of the Bill, and the parliamentary procedures to be followed.

With regard to losses during pregnancy, sections 50 to 55 of the Bill set out statutory controls for losses during pregnancy of babies less than 24 weeks’ gestation whereby a woman is given the option to choose whether the non-viable fetus is cremated, buried or otherwise disposed of: however, this is from the “reasonably practicable” options suggested by the health authority; as written, it does not specify how cremation is to be carried out, i.e. to maximize the quantity of “human remains” (as defined in section 36), which may be influenced by a codes of practice, a copy of the which must be laid before the Scottish Parliament: section 67(3).

With regard to the definition of “ashes”, whereas the ICC recommended a definition based upon the output of the cremation process, viz. “all that is left in the cremator at the end of the cremation process and following the removal of any metal”, the Bill incorporates “ashes” within the overall process definition of “cremation” which includes a non-intuitive definition of “human remains” specific to section 75. Whilst the definition reflects, albeit in an inelegant fashion, the current practice on what is regarded as the “ashes” remaining after the cremation process, there are two remaining issues for clarification:

– the amount of cremation residue to be recovered from the cremation chamber; a quantity of ashes will be carried over to the secondary combustion, some of which will be captured by the dust arrestment equipment, (see the forensic anthropological evidence of Dr Julie Roberts to the Mortonhall/Bonomy Report. Some of the lighter particles may be carried over to the secondary combustion system and the subsequent dust collection equipment, generally a bag filter. The Shrewsbury enquiry drew a similar conclusion, [section 4.39].

– likewise the composition of the cremation residue will vary between adults and fetal remains, and according to process conditions.

As noted in an earlier post, taking these two issues together, for fetuses of less than 24 weeks’ gestation, “all that is left in the cremator at the end of the cremation process and following the removal of any metals” can vary from zero (where combustion conditions are unfavourable for retention) to a finite mixture of cremated fetal remains plus other material cremated along with the baby, the quantities of each being a function several factors.

The definition of “ashes” appears to be an area in which further work is required in order to provide an unambiguous working definition.

David Pocklington