THE regulation of new funerary methods — including “water cremations” and human composting — has been recommended by the Law Commission of England and Wales.
The independent statutory body, set up to keep the law under review and to make recommendations to the Government, published on Thursday a report on reforming new funerary methods. It was preceded by a consultation paper, published last June, which received 124 responses from faith communities, funeral directors, local authorities, industry bodies, and members of the public.
Currently, the law in England and Wales recognises only burial, cremation, and, though less common, burial at sea. New funerary methods are alternatives to these, such as alkaline hydrolysis (sometimes known as “water cremation”) and human composting, which are not currently covered by any specific legal framework, but which are available in certain other jurisdictions. In Scotland, for example, regulations have recently been made enabling the use of alkaline hydrolysis.
The Law Commission has recommended that the UK and Welsh governments pass legislation to regulate new funerary methods individually as they emerge. This would be done in a similar way to that of cremation, with some provisions set out in primary legislation, but most of the details in secondary legislation, such as statutory instruments.
The Commissioner for Public Law, Professor Alison Young, said: “Burial, cremation and burial at sea are the only funerary methods currently regulated in England and Wales, although new funerary methods are being developed and are available in other jurisdictions.
“Our recommendations would create a clear, future-proof legal framework that would give the UK Government and the Welsh Government the tools to regulate new options safely, ensuring proper oversight, without affecting existing choices.”
In its consultation paper, the Law Commission had set out three principles which underpinned the regulation of burial and cremation, namely, the protection of the environment and of public health and public safety, and the preservation of human dignity. In its report this week, it recommended that the Secretary of State and Welsh Ministers have regard to the importance of these three principles when making regulations about individual new funerary methods.
Some consultees to the paper did not think that the principle of the preservation of human dignity should be included, because the meaning might be interpreted differently across contexts and cultures, and could change over time.
The Law Commission acknowledged this in its report, saying that any legislation would not compel people to use a particular funerary method, but, rather, that there would be a choice. The UK and Welsh governments, respectively, would not, therefore, need to ensure that the regulation of a specific method met all possible conceptions of human dignity. The Law Commission did say, however, that being clearer in any regulation about the meaning of the principle would be beneficial.
The core element of this, it said, was that human remains should be treated with dignity, and a focus on this would provide more clarity than referring more generally to the preservation of human dignity.
The Law Commission also discussed specific elements of regulatory powers. It recommended that all burials and cremations must be registered. This was distinct from the registration of a death, although the two systems of registration interacted. The requirements to register a burial were set out in various pieces of legislation and differed depending on where it took place — whether in a local-authority cemetery, a Church of England burial ground, a private cemetery, or another burial ground. The requirements to register a cremation were set out in other legislation.
A comprehensive system of the registration of burials and cremations was important, the report said, because it ensured that a record was kept that might be of value in relation to the investigation of crime. It might also be of practical and emotional significance to those tracing their family history.
There was, therefore, a strong rationale for ensuring that each use of a new funerary method was registered in broadly the same way.
The Law Commission also recommended that the Secretary of State and Welsh Ministers set out in detail who would carry out the registration, and how, when, and where this should be done. It said that these governments should have the power to create new offences in secondary legislation regarding the breach of regulations about each new funerary method.
To alleviate concerns about the respective governments’ being given unfettered power to create new offences, it was recommended that a maximum penalty of a fine at level three of the standard scale (currently £1000) for committing such an offence should be set in primary legislation.
It concluded that any breach of the prohibition on the use of non-regulated funerary methods should be a criminal offence.
The report then considered the penalties for existing offences that might constitute a failure to treat human remains with dignity and had the potential to cause significant distress to the public. These were unlawfully exhuming a body, or using the body of a deceased person for purposes such as research or public display without consent — both of which might result in up to three years in prison.
The Law Commission concluded that the potential harm of using a non-regulated new funerary method could, in extreme cases, be similar. A person who was guilty of this might, for example, have carried out a method of disposal which could cause environmental damage, danger to public health, and widespread distress. It could also lead to the undignified treatment of human remains.
It was, therefore, recommended that it should be a criminal offence to carry out a new funerary method that was not regulated, and that imprisonment should be a possible penalty.
The Law Commission’s recommendations — together with two draft Bills, one for England and one for Wales — are to be put before the two governments for their consideration and response.