Burial Regulations Working Group minutes: July 2022

Attendees and apologies

• Fiona Porter, North Ayrshire Council
• Gordon Findlater, Inspector of Burial, Cremation and Funeral Directors
• John Lawson, Association of Local Authority Archaeological Officers (ALGAO) UK
• John MacLean, Highland Council
• Katie Huxtable, Commonwealth War Graves Commission (CWGC)
• Liz Murphy, Fife Council
• Nick Britten, National Association of Funeral Directors (NAFD)
• Nicola Welsh, Held in our Hearts
• Robert Swanson, Senior Inspector of Burial, Cremation and Funeral Directors
• Sam Harris, Orkney Islands Council
• Shirley Bruce, Aberdeenshire Council
• Susan Buckham, National Committee on Carved Stones in Scotland (NCCSS)
• Yvonne Scott, Shetland Islands Council
• Yvonne Wilson, National Association of Memorial Masons

Scottish Government

• Euan Mcardle, Burial & Cremation, Anatomy and Death Certification
• Katrina McNeill, Burial & Cremation, Anatomy and Death Certification
• Rachael Thomson, Burial & Cremation, Anatomy and Death Certification

Apologies

• Alasdair McKenzie, Historic Environment Scotland
• Ian Kearns, Federation of Burial and Cremation Authorities (FBCA)
• Julie Dunk, Institute of Cemetery and Crematorium Management (ICCM)
• David MacColl, Glasgow City Council

Items and actions

Agenda item 1: welcome

The meeting was opened and members were thanked for their attendance at the eighth meeting of the Burial Regulations Working Group.

An overview of the meeting agenda was provided.

Agenda item 2: minutes and actions

The minutes of the seventh meeting of the Group were reviewed and members agreed they were content to publish the minutes.

Members were thanked for their feedback on the draft application forms and burial registers. The forms for private burial and exhumation are still in development and will be circulated to the group for feedback in due course.

An update on actions from the previous meeting was given with more detail to be provided at agenda item 3.

The group raised the issue around undesignated heritage and thought it would be useful to highlight additional documents, such as the National Planning Framework. Members were encouraged to share any helpful forms or guidance with the group. 

Following a meeting between NCCSS, SG, and Edinburgh Council, Susan Buckham NCCSS has agreed to develop a discussion paper on heritage considerations for both designated and undesignated sites. The group agreed that this work will be useful when developing guidance and a code of practice.

Action: Scottish Government to arrange for website publication for the agreed minutes.

Action: Scottish Government to share information on the effects of private burial on other legislation including those effecting monuments, listed buildings and conservation. 

Action: Scottish Government to share guidance from East Ayrshire Council on private burial.

Agenda item 3: discussion of update paper - considerations for development

The paper was discussed and an update on the following points was provided:

Access to and within burial grounds, including the construction, repair, maintenance and improvement of roads and paths (section 6(2)(c))

• discussions are ongoing around obligations to maintain access, including who owns the access routes, and further conversations to be had with planning colleagues in relation to new burial grounds

The Scottish Ministers may by regulations make provisions for or in connection with the exhumation of human remains (section 27(1))

• internal Scottish Government discussions will explore whether a definition of exhumation can or should be included in regulations, and the benefits and risk of doing so
• if a definition is possible, the definition used by the City of London was generally accepted

Make provision about applications to carry out exhumation (section 27(2)(a))

• Scottish Government met with the Ministry of Justice (MoJ) to discuss how the system of fast-tracked exhumation works in England. Each exhumation form has space at the top of the form where the exhumation can be marked as urgent and the reasons recorded. If the reasons given are justifiable and there is agreement from both the burial authority and the next of kin, the exhumation will be fast-tracked. This approach came from a recommendation of the Parliamentary Ombudsman and is working well in England
• members were content with this approach and agreed that standardisation across Scotland, and the UK if possible, would be beneficial. Lessons and experience from across the UK nations should be drawn upon. The group will have further opportunity to feed into the forms in due course
• members questioned what would happen in the situation where remains (potentially very old) were uncovered whilst excavation or other works were underway – i.e. bodies discovered outside of the boundaries of a burial ground. Members welcomed bringing all exhumations under one form. A number of points were considered (1) that regulations would not make any provision which would interfere with any police investigation (2) the Act does not enable regulation of non-burial grounds, and therefore this would generally fall outwith the scope of these regulations, unless (potentially) the site was a historical burial ground (3) that there have been discussions with planning colleagues around, for example, when developments are happening right next to burial grounds. This area overlaps with archaeology and planning legislation. Members of the group will have an opportunity to feedback on the draft exhumation forms and add additional comments and recommendations can be made there
• a question was raised around the appropriate cut-off for when archaeologists rather than burial ground staff should be involved in the exhumation. There is currently no defined time scale, but it was advised that in practice, the general cut-off is the end of WWI

Enable applications to be made in respect of burials of persons who, at the time of making the application, are not deceased (section 22(5)(c))

• internal Scottish Government discussions are underway on applying for private burial whilst still alive – along with timescales (i.e. how far in advance one may apply), the risks and how this may impact other legislation

Make provision about documents to be submitted with, or in relation to, applications (section 22(5)(d))

• further work and discussion with local authorities is required to understand who would centrally process private burial applications. Burial authorities within local authorities will have a key role in signing off applications, but may not be responsible for ensuring all relevant forms and consents (e.g. from SEPA, electricity companies etc.) are received

Make provision for or in connection with notices by local authorities of the authorities’ decisions relating to applications to carry out private burials, notices relating to those notices by persons making the applications or by such other persons, or other persons of such descriptions, as may be specified in the regulations (section 22(5)(k))

• notices for successful applications, successful with conditions or unsuccessful, will be statutory and standardised across Scotland. The drafting of these statutory notices should be relatively straightforward and will be shared with the group for views

Make provision for reviews of or appeals against decisions of the local authority to authorise the carrying out of private burials, decisions of the local authority to refuse to authorise the carrying out of private burials, any conditions subject to which a private burial is authorised (section 22(5)(m))

• internal Scottish Government discussions are underway to explore an appropriate system of appeal – options may include appeal to the Sheriff, appeal to Inspectors of Burial, or challenge of a local authority decision in court

The second half of the paper outlines a list of areas for inclusion within guidance and the code of practice. Although not for discussion in this meeting, the Chair encouraged members to read through this section in their own time and think about these areas in more detail as we progress this work. Any questions can be received by email.

Agenda item 4: discussion of immediate next steps for burial regulations

The group were content for officials to continue progressing work on the issues discussed, consulting as necessary with relevant organisations and other policy areas.

Some issues will be more straightforward than others and can be progressed through correspondence. Other topics may benefit from a specific focus group.

Members raised a few final points in regard to private burial:

• private burial requires the landowner’s permission. The distinction was drawn between freehold and leasehold properties (in Scotland this is heritable and long lease respectively). For the latter, private burial is unlikely to be approved
• private burial on family owned property is likely to be more straightforward so long as the proper consents and environmental issues have been addressed

Linking back to discussions on exhumation and involvement of archaeology, members stated the following points:

• local authority burial grounds came into being during the industrial revolution of the 18th century. Prior to that, all deceased were buried in a church cemetery. As more and more people moved to industrial areas, churches couldn’t handle the amount of people dying and so local authority burial grounds came into being
• concerns were raised around the definition of ‘burial ground’ and ‘burial authority’ and the extent to which historic burial grounds are covered by the legislation. There are many different types of burial grounds with complex histories – for example, during the Victorian period, before local authorities were involved, many landowners donated parks for burial grounds. These were donated to the people rather than the local authority. For those buried in these parks, who would grant the permission for exhumation – should it be required? It was noted by the Chair that some of the points were answered in the previous meeting on Private Burial
• the Chair explained that the definition within the Act cannot be changed without going back to Parliament. It is for us to consider how we can capture everything that is required within the regulations. Susan Buckham’s paper will be helpful to inform ongoing discussions as we look to develop guidance and a code of practice

Agenda item 5: discussion of steps going forward for burial regulations work

Policy instructions will be prepared to enable initial drafting of the regulations. These will be informed by the working group discussions and agreements reached.

There will be further opportunities to feed into this work, including a public consultation.

Work will also progress on the guidance and code of practice – both of which fall within the remit of this group (as per ToR).

Regulation on reuse of lairs will be developed slightly separately to the policy instructions for burial management, private burial and exhumation. This group will be asked to contribute to that work.

Agenda item 6: open discussion

The group asked whether the regulations would include specific provision to assist with the process for the removal and destruction of gravestones. Particular concern was raised around the incremental changes within burial grounds for ease of maintenance and site management. It was felt that this appears to happen without a process that allows evaluation of the value of the material before destroying or taken off-site.

It was explained that no specific provision will be made in this regard in regulation. Burial authorities will make case by case decisions based on their health and safety obligations, for example, laying memorials flat. However, the importance of Scottish heritage is recognised and the guidance and statutory code of practice will include steps that should be taken in order to recognise and protect the value of historical monuments and graves. Further engagement will be required to ensure we achieve the right balance between the protection of Scottish heritage, health and safety obligations and what is achievable under the Act.

Agenda item 7: closing remarks and thanks

The meeting was closed, and members were again thanked for their attendance at all working group meetings.

The group will continue to be updated on progress via correspondence.

 Any questions can be sent to the secretariat.