On 27 November 2024, the Church in Wales announced its support for a proposed radical change to the burial law which would transfer care of closed graveyards to local authorities. The Press Release states:

“In Wales, church graveyards that are closed because they are full, have to be maintained by the congregations. This could change under proposals put forward by the Law Commission to transfer their care to local authorities, as is the case in England…[t]he cost maintaining closed graveyards, which are community burial places, has been a heavy and unfair burden for churches for many years…This proposes a radical change that would impact significantly on the Church in Wales…

It is the only denomination in Wales that has an obligation to bury all parishioners, without discrimination – a similar duty to the Church of England. However, we do not have the equivalent power to transfer maintenance of closed burial grounds to local authorities.

We believe the proposed change in the law is fair. Our congregations receive no income from closed burial grounds so the burden of maintenance weighs heavily on them…[w]e do believe the responsibility for maintaining places of community burial, which are full, should be able to be passed to the local authority.”

Consultation

The consultation, which ends on 9 January, can be accessed at: Burial and Cremation – Law Commission. The proposal on closed graveyards is in Chapter 7 and question 31. Sections relevant to the Church in Wales are reproduced below.

Chapter 7: Closure and reopening of burial grounds

Maintenance of closed Church in Wales churchyards

7.32 The power to transfer responsibility for maintenance does not apply to the area subject to the Welsh Church Act 1914, ^[874] that is, the area covered by the Church in Wales.

7.33 That area is not exactly the same as the nation of Wales, as some parishes which straddle the border opted to remain part of the Church of England. Those parishes are able to transfer maintenance responsibility to Welsh community councils, who can then transfer it upwards to county or county borough councils. ^[875]

7.34 In the area covered by the Church in Wales, there is no provision to transfer the responsibility for maintaining churchyards to the local authority. The Representative Body of the Church in Wales, which is responsible for looking after the assets of the devolved church, has responsibility for most closed Church in Wales churchyards. ^[876] The exception may be any churchyards which were transferred to local authority maintenance under provisions repealed by the Local Government Act 1972. In these cases, the local authority remains in control with the same duties as parochial church councils of the Church of England. ^[877]

7.35 However, while the Church in Wales now has no ability to transfer responsibility for maintaining burial grounds to local authorities, it retains the duty to bury parishioners, which was retained in law on the disestablishment of the Anglican church in Wales. ^[878]

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Maintenance responsibility and burial rights in Wales

7.49 In England, the ability of the Church of England to transfer maintenance responsibility to the local authority can be justified by the continuing ordinary right of burial. That right alleviates pressure on local authority cemeteries, so the suggestion in academic commentary is that it is reasonable for public funds to then be expended on upkeep. ^[882]

7.50 However, in Wales the same right persists but with no ability to transfer maintenance into local authority hands. We have been told that few if any closure Orders have been sought in Wales since disestablishment. As a result, we understand that the Church in Wales is hesitant to open a new burial ground without an endowment and financial plan which will maintain it indefinitely. Consequently, the Church in Wales has opened few new burial grounds in recent decades.

7.51 This in turn has a negative impact on the availability of burial space, particularly in areas of rural Wales where local authority burial grounds or crematoria may be some distance away.

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Law in Wales on closing burial grounds

7.103 We understand from stakeholders in Wales that the lack of any ability to transfer maintenance responsibility for closed churchyards from the Church in Wales to community or county councils ^[892] has a negative effect on the availability of burial space, particularly in rural Wales. Combined with the right of burial in Church in Wales churchyards, it creates pressure on burial space in churchyards. The Church in Wales is concerned this could lead to legal action by parishioners who might be denied their right to burial as a result of a lack of available space. We consider that there are two options when it comes to reform in this area of law.

7.104 The first would be to end the Church in Wales’ duty to bury parishioners. This would remove the pressure on the Church in Wales to create further burial space. However, it would place that additional pressure on other burial grounds, particularly those operated by local authorities. In addition, it would create a disparity with the situation in England, where a parishioner’s ordinary right of burial means that every person has the right to be buried somewhere. People in Wales would be left without that specific right, which would be an unacceptable outcome. Removing the duty would also mean the end of one of the two vestiges of establishment, ^[893] which would be a constitutional change of some significance, which would ask questions about the Church of England’s similar duty.

7.105 The second would be to give the Representative Body of the Church in Wales the power to transfer maintenance responsibility to either community councils or Welsh county councils. There are two arguments for the equivalent power held by the Church of England, namely that it reflects the public benefit of the ordinary right of burial, and that it reflects the established nature of the Church. Only the first of these applies in the case of Church in Wales. Providing the Church in Wales with this power may enable it to open new churchyards, creating additional burial space.

7.106 This second option would be likely to create a significant new cost pressure on Welsh local authorities, which are already under financial constraints. While that pressure also exists in England, it will to an extent already have been budgeted for, and has gradually come into existence over time; while in Wales there are likely to be a significant number of churchyards that would be transferred in quick succession. We have heard a strong view from local authorities in Wales that they would struggle to afford this cost.

7.107 We consider that the arguments against removing the duty on the Church in Wales to bury parishioners are too strong to consult on such a provisional proposal. Accordingly, we ask consultees for their views on only the second option, of giving the Church in Wales the same power to transfer the responsibility for maintaining churchyards to the secular community or county council as exist in England.

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Consultation Question 31.

7.108 We invite consultees’ views on whether the Church in Wales should be able to transfer the responsibility for maintaining its churchyards and burial grounds to the community council or county council, on the same model as in place in England.

Comments can be made via an on-line portal as detailed in the consultation. The deadline for response is 9 January 2025.

References

[874] Local Government Act 1972, s 215(1).

[875] Local Government Act 1972, s 215(1)(c) and (3).

[876] Welsh Church Act 1914, s 8(1)(a)(viii) and Welsh Church (Burial Grounds) Act 1945, s 3.

[877] Local Government Act 1972, s 215(4).

[878] See Ch 4 para 4.10 on ordinary burial rights in Church in Wales churchyards.

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[882] T Watkin, “Ecclesiastical law and the Church in Wales” (16 March 2021) https://law.gov.wales/ecclesiastical law-and-church-wales  (last visited 26 September 2024).

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[892] County councils are the second and highest tier of local government in Wales.

[893] The other being the solemnization of marriages, see the Welsh Church (Temporalities) Act 1919, s 6.