“During the period of any coronavirus pandemic where there is increased demand on cremation services, the need to progress cremations in a timely manner will be paramount“.
As the coronavirus pandemic progresses, a recent indication of the development of funeral practices was given by The Guardian headline “UK councils begin to ban funeral ceremonies due to coronavirus“. Although dated 4 April, changes were being introduced by Leeds City Council as early as 20 March when it was announced that new funeral bookings (in Leeds) would be “cremation only”’ with no attendees.
This announcement preceded Death Management Advisory Group (DMAG) sector-wide advice issued on limiting attendance at funerals issued on 24 March, and the new guidance on 31 March from Public Health England (PHE) to ensure that funerals are conducted safely, consistent with social distancing principles. However, it should be noted that two underlying issues are being addressed: one relating to proximity and the transmission of coronavirus, and the other of procedural efficiency and the need to ensure that the use of crematoria and burial grounds keeps pace with an expected increase in the number of deaths.
This is evidenced inter alia from the potential for further provisions within the scope of the Coronavirus Act 2020, and the possibility of temporary changes to the application of the cremation regulations as outlined in draft guidance; these are summarized below. It should be noted however, that at the time of writing none of these possible actions has been enacted.
Provisions within the Coronavirus Act 2020
Background to the development of the Act is provided by the Commons Research Briefing Coronavirus Bill: Managing the deceased, (“the paper”) which deals specifically with the provisions in the Bill which concern managing the deceased. The paper was updated on 25 March 2020 following Commons stages and Lords Second Reading of the Bill. It now includes information about agreed amendments to Schedule 27 (in the Bill as originally presented, but as Schedule 28 in the Bill presented in the House of Lords) which deals with the transportation, storage and disposal of dead bodies and human remains. The amendments deal with local and national authorities having regard to the deceased’s wishes, or the requirements of their religion or beliefs, concerning burial or cremation. The implications of these issues associated with the certification and registration of death are included in the paper’s summary and are reproduced here and the full paper is here.
Coronavirus Act 2020
The Commons Library Insight post Coronavirus: Powers to direct between burials and cremation reviews the Government’s new emergency powers within the Coronavirus Act 2020 and the possible consequences for conducting funerals. The Act includes inter alia: provisions which expand the list of people who can register a death; remove the need for a second confirmatory medical certificate in order for a cremation to take place in England and Wales and Northern Ireland; and enable a death to be registered without the informant attending in person.
Explanatory Notes have been prepared by the Department for Health and Social Care, although they do not form part of the Act and have not been endorsed by Parliament. However, they explain what each part of the Act means in practice; provide background information on the development of policy; and provide additional information on how the Act affects existing legislation in this area.
All primary and secondary legislation relating to coronavirus is available at www.legislation.gov.uk/coronavirus.
Emergency powers and conducting funerals
The Commons Library Insight publication Coronavirus: Powers to direct between burials and cremation explains the new emergency powers in relation to how deaths might be managed during the COVID-19 pandemic. It notes that the Coronavirus Act 2020 (“the Act”) includes new powers Government in anticipation that local death management systems could become overwhelmed during the COVID-19 pandemic. The Act contains broadly defined powers for national and local authorities to direct matters related to the transportation, storage and disposal of dead bodies. These can be used only if a Government Minister in the relevant nation [i.e. E, W, S, N] decides to activate them.
If the powers are activated, the Government foresees that local authorities may choose, for example, to direct local funeral directors, mortuaries owners, crematoria owners and others, to streamline the death management process. This may include an increase in the operating times of crematoria, directing companies to use their vehicles to move bodies, or directing others not directly involved in the funeral sector, to provide necessary support.
Powers to decide between burial or cremation
One of the powers available within the Act is to enable a local or national authority to direct whether a deceased person must be buried or cremated. Following an amendment to the legislation as it passed through Parliament, the Act now specifies that any local or national authority exercising this power must “have regard to the desirability of” disposing of a dead person’s body in accordance with the person’s wishes, or otherwise in accordance with the person’s religion or beliefs, if known.
Under existing public health legislation, local authorities must not arrange for a body to be cremated if contrary to the wishes of the deceased. Under the new powers, this would be suspended. However, the Government has stated that personal choice for body disposal will be respected as far as possible. Part 2 of the Act allows national authorities to designate a local authority area where, as a result of COVID-19, there is likely to be insufficient capacity within that area to transport, store or dispose of the deceased.
Once an area is designated, a local authority will be able to exercise the power to give directions on how deaths will be managed. Where a regional or national response is more appropriate, a national authority could give the same directions itself, rather than leaving it to individual local authorities to give directions. The Government has said that the powers of direction will be used “only in the most extreme situations where there is a risk to public health”, and only “when scientific evidence and operational advice suggests that it is necessary.” In this instance, the powers would be activated to “ensure the local death management system continues to work effectively to protect public health and the dignity of the deceased.”
Some faith groups, including Muslims and Jews, for whom burial, rather than cremation, is a religious requirement, have raised concerns about the prospect of cremation against the wishes of the deceased and their families. This issue was raised in both Houses of Parliament in debates on the new law, and is discussed in the Commons Library document Coronavirus: Powers to direct between burials and cremations, (27 March 2020).
Guidance on The Cremation (England and Wales) Regulations 2008,
As a consequence of the certification issues, a series of revised guidance notes has been produced on specific aspects of The Cremation (England and Wales) Regulations 2008, which “are modified when specific provisions in the Coronavirus Act 2020 are implemented”; these are addressed to medical practitioners; funeral directors; crematorium authorities and managers; crematorium medical referees; and applicants. Again, this revised Guidance applies only when the modified Regulations are in force; but during that period, no other version of this Guidance is to be used.
In addition to the above current and prospective measures enshrined in legislation, other groups are working within this framework to develop provisions of particular relevance to their activities.
The article in The Guardian referred to above states “Bradford, Leeds and Kirklees to offer ‘direct cremations’ with no mourners or restricted burials”. A spokesperson for Kirklees Council said: “Whilst the council will no longer offer a full funeral service or allow families to come into the crematoria, it hopes that providing the opportunity for a vicar or celebrant to say a prayer or a few words in the chapel will bring some comfort to families and loved ones.” An increasing number of Councils and crematoria operators are imposing similar restrictions, such as those in place for the South Oxfordshire Crematorium and Memorial Park.
Church of England
The Church of England has produced a range of downloadable funeral and bereavement resources designed for clergy and lay ministers in relation to funerals and bereavement. It is also preparing for the possibility of a significant increase in demand for funeral ministry and the reality that in some places, ministers will not be able to take services because they themselves are needing to isolate. The Diocese of Oxford has indicated that Funeral Directors are likely to come under greater pressure and will need to arrange ministers at short notice; clergy have been given advanced warning “planning is underway for the Diocese to support incumbents and funeral directors in the organisation of funerals. Further details to follow but not until week beginning 20th April”.
Muslim Council of Britain
The National Burial Council has been working with Public Health England to best plan for facilitating the burial of Muslims who pass away from COVID-19; the latest guidance from the National Burial Council, which has a specific page with links to Muslim burial resources. In addition, this includes some theological rulings are explained; these “are guidelines and have been developed alongside a range of Islamic scholars. The MCB encourages individuals to consult their local Imam or Scholar in the first instance for specific advice”.
Sky News has reported on the changes being introduced at the Eternal Gardens cemetery serving the capital’s Muslim communities, where saff-burials – a method of laying people to rest in rows named after the Arabic word for “rows” – have been introduced. It is stressed that these are not “mass graves” but comprise wooden separation screens between each body to create individual chambers inside the grave; funeral prayers are read for all 10 deceased before each body is carefully lowered into their final resting places In keeping with Islamic traditions, bodies are buried without coffins, wrapped in pure cotton shrouds which are biodegradable.
As noted above, there are two underlying issues: transmission of coronavirus and proximity issues; and the efficient use of crematoria and burial facilities. The coronavirus-related Regulations currently in force in England, Wales, Scotland and Northern Ireland were all introduced to protect against the risks to public health arising from coronavirus, through closures or restrictions on businesses selling food or drink, and restrictions on anyone leaving the place in which they live. As David Allen Green noted, “[t]he Regulations are made under public health legislation…[and] are thereby not rules on public order as ends in themselves, but as means to an end – with that end being dealing with a contagious disease”.
The provisions described in this post can be used only if a Government Minister in the relevant nation decides to activate them, and at the time of writing, none of the possible actions discussed above has been enacted. However, in anticipation of a future escalation, some funeral authorities have begun to introduce measures directed at significantly reducing or banning completely the attendance at funerals in crematoria or at the graveside.
Given the likely increase in funeral conducted in the absence of relatives and close family, the use of the terms “Direct Cremation” and “Contract Funeral” by local authorities and funeral providers is problematic in two respects: these are “terms of art”, not enshrined in legislation, and there are variations in their meaning; and the association of these terms with “Public Health Funerals”, (sometimes erroneously referred to as “paupers funerals”), reviewed in our post “Public health funerals” and “direct cremation”.
The is clearly a need for greater clarity in the use of these terms. Furthermore, as the norm for generally available cremation practices approaches that formerly associated with “Public Health Funerals”, now would seem to be an opportune time to end some of the restrictive practices adopted by some councils, here and here.