A NEW law to allow the reuse of all old graves in England and Wales, and to reopen Victorian burial grounds for reuse, could help to address the national shortage of burial space, the Law Commission has proposed.
The shortage is widespread, but worse in some urban areas, it acknowledges.
The Law Commission of England and Wales, the independent body established by statute to keep the law under review and to make recommendations to government on law reform, has published a consultation paper that makes provisional proposals to reform the law on burial and cremation, parts of which are more than 170 years old.
There are differing approaches to burial according to religion and culture.
The Church of England and the Roman Catholic Church require that ashes be buried or strewn on consecrated ground. Islam prohibits cremation. Orthodox Judaism, but not the Liberal or Reform traditions, also prohibits cremation. Some Caribbean and African communities in the UK strongly prefer burial. Hinduism and Sikhism require cremation.
Burial law has, therefore, evolved over the years into a patchwork that applies to different burial grounds, depending on who operates them. Some of the laws date back to the 19th century, and are deemed to be unfit for the 21st century.
Burial was once the sole responsibility of the Church of England, but is now divided between the C of E, local authorities, and private burial grounds. Gaps in the law mean that there are no rules for private cemeteries, for example, on the minimum depth at which bodies should be buried.
A 2007 Ministry of Justice survey found that local-authority cemeteries had, on average, 30 years’ burial space left. When each burial plot in a cemetery was used only once, over the course of time the cemetery ceased to serve its original purpose, and risked falling into disrepair and becoming a site for anti-social behaviour, the Commission says.
Grave reuse has been permitted in C of E churchyards since time immemorial, although a faculty is required if reuse involves moving memorials or remains.
The Law Commission does not propose any changes to grave reuse in relation to the C of E. It does, however, believe the reuse of other graves to be a solution to the shortage of grave space in England and Wales.
Currently, only some burial grounds are permitted to reuse graves: in London, local-authority cemeteries, and three other cemeteries (including Highgate Cemetery) that have obtained their own Acts of Parliament permitting it.
The Commission’s proposals would enable any burial ground to reuse graves, but only after public consultation, and only with government approval of the burial-ground operator’s plans.
There would also be safeguards for individual graves. Currently, graves can be considered for reuse only if the previous burial took place more than 75 years ago. The Commission is consulting on whether any new law should use the same time period, or a different one, such as 100 years. If the family of the deceased person objects, no reuse can happen for a further 25 years.
The Law Commission also addresses the issue of closed churchyards and uncollected ashes.
Numerous C of E churchyards and other burial grounds were closed by law in the Victorian era. The Commission proposes that these be reopened for use, allowing people to be buried closer to home, or in a space that holds a special meaning.
Funeral directors are estimated to hold hundreds of thousands of ashes that have not been collected by families after cremation, and which the funeral directors have no legal right to bury or scatter. The Commission’s proposals would enable ashes to be returned to crematoria, which could use their existing powers to scatter or bury these once reasonable attempts had been made to contact the family of the deceased person. The proposal would apply retrospectively to currently unclaimed ashes, as well as to those that were not collected in the future.
The siting of crematoria is also addressed. Currently, crematoria have to be constructed at least 200 yards away from residential homes, and 50 yards from public highways. This was originally because of concerns about emissions, but this may no longer be the case with modern technology. The consultation asks whether this rule should remain.
Currently, the law also permits people to bury bodies on their own land; but there is no means of ensuring that information about the location is passed on to a new owner. The Commission proposes that not to do so would be a criminal offence.
The Commissioner for Property, Family and Trust Law, Professor Nick Hopkins, said that the proposals provided “a significant opportunity to reform burial and cremation law and secure burial space for future generations”. This had to be done “sensitively and with wider public support”.
The Parliamentary Under-Secretary of State at the Ministry of Justice, Alex Davies-Jones, said that the Government was supportive of the Law Commission’s work, and encouraged the public to respond to the consultation paper.
The Law Commission is seeking, in particular, the views of interested members of the public: those who operate burial grounds or crematoria, those who use them, funeral directors, and those who are involved in the palliative-care sector.
The consultation runs for 14 weeks, and will close on 9 January. Final recommendations are to be made to the Government at the end of that year.
lawcom.gov.uk