Burial Regulations Working Group minutes: April 2022

Attendees and apologies

Attendees

• Alasdair McKenzie, Historic Environment Scotland
• Brendan Day, Federation of Burial and Cremation Authorities (FBCA)
• David MacColl, Glasgow City Council
• David MacLeod, Comhairle nan Eilean Siar
• Fiona Porter, North Ayrshire Council
• Gordon Findlater, Inspector of Burial, Cremation and Funeral Directors
• James Morris, National Society of Allied and Independent Funeral Directors (SAIF) on behalf of Joseph Murren
• Ian Kearns, Inverclyde Council
• John Downes, Scottish Bereavement Benchmarking Group (SBBG)
• John Lawson, Association of Local Authority Archaeological Officers (ALGAO) UK
• Julie Dunk, Institute of Cemetery and Crematorium Management (ICCM)
• Katie Huxtable, Commonwealth War Graves Commission (CWGC)
• Liz Murphy, Fife Council
• 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)
• Tim Purves, William Purves Funeral Directors
• Yvonne Scott, Shetland Islands Council
• Yvonne Wilson, National Association of Monumental Masons (NAMM) on behalf of Russell Brooks

Scottish Government

• Euan Mcardle, Burial & Cremation, Anatomy and Death Certification
• Katrina McNeill, Burial & Cremation, Anatomy and Death Certification
• Kim Hunter, Burial & Cremation, Anatomy and Death Certification

Apologies

• Brian Corrigan, Cruse Bereavement Care
• John MacLean, Highland Council
• Joseph Murren, National Society of Allied and Independent Funeral Directors (SAIF)
• Russell Brooks, National Association of Monumental Masons (NAMM)

Items and actions

Welcome and introductions

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

An overview of the meeting agenda was provided and new introductions were made.

Review previous meeting’s minutes and run through of actions progressed

The minutes of the fifth meeting of the group were reviewed and the group agreed they were content to publish the minutes.

A run through of the actions progressed was provided and noted that any future updates will be sent to the group or provided at the next meeting.

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

Action: Scottish Government to provide updates, where appropriate, on actions progressed and provide an update at the next meeting.

Implementation of Section 27 the exhumation of human remains

Section 27 of the Act allows the Scottish Ministers to make provision for, or in connection with, the exhumation of human remains.

In relation to this, an exhumation application and register will be considered by the Group, with the intention to agree, by correspondence, exhumation application forms and exhumation registers. Members were asked to send any comments on exhumation applications and registers by email to the Secretariat. Thanks was given to those who already sent their thoughts, applications and register headings to the secretariat.

4. a. Discussion of Paper 1: Regulations of Exhumation

An overview of Paper 1 was provided, which examines sections 27(1) and 27(2) of the 2016 Act and summarises discussions by previous editions of the Working Group for discussion by the current Group. Discussion on paper 1 was opened.

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

• members queried whether a definition of exhumation would be required and if this would encapsulate disturbed remains and ashes in order to ensure the Group works cohesively when discussing this topic. No definition was settled on though some members noted it may be useful. It was noted that there was not a definition provided for in the Act so this might be difficult now
• members queried if there would be separate needs for archaeological remains, and discussed the current practices. Some members favoured an approach where there’s separate practices for archaeologically important remains to other remains. It was noted that HES guidance already covers a policy for the treatment of human remains in archaeology
• a number of members favoured treating all remains equally regardless of the type of remains
• the group came to a consensus that it was appropriate to make provisions for, or in connection with exhumation and officials would give further consideration about the need for a definition of exhumation in the regulations

27(2)(a): make provision about applications to carry out exhumation

• members agreed that the current processes, applying to the Sherriff and going through the courts, was costly and time consuming and that they would be grateful for a smoother process
• members raised concerns from an archaeological perspective, and asked the Group to consider including a process for seeking archaeological advice where appropriate. In regards to this point, emphasis was made that any new processes could potentially be costly and have other implications which applicants should be made aware of
• members discussed the need for an ‘exhumation permit’ for burial authorities, which resulted in mixed opinions. A number of burial authority members thought a permit would be a useful tool as it would give the burial authority the permission to conduct exhumations, where appropriate. Other members argued that a permit would be unnecessary as exhumations are rare and that the act of applying for the permit might lead to unnecessary strain on services
• Scottish Government representatives highlighted that it is intended that the Funeral Industry Inspectorate would be established when these regulations come into effect and the Inspectorate’s admin team would issue reminders for the applications for the permit. The team highlighted that the permit could last longer than one year and that the annual permit was an example of how the scheme might work
• the group agreed that more discussion was required on the permit scheme as they were not completely clear about what this would entail. It was agreed that the regulations should allow for applications to exhume

27(2)(c): Specify persons, or a description of persons, who may make applications

• members raised concerns about the rights of succession and potential for disputes if a person, other that the rightful lair owner, applies for exhumation and a requirement for written permission of the lair owner, where appropriate. And in relation to this, queried whether this was too restrictive and if an applicant could do due diligence for example by conducting a consultation
• other suggestions included that a statutory declaration should be signed by any applicants, to confirm that they have the right to apply for exhumation
• representatives queried if it would be appropriate, given exhumations are rare, to forward all applications onto the Inspectors, although this did not develop into further discussion
• members agreed that a comprehensive and robust application process would be needed in order to stand up to scrutiny if the exhumation was challenged at a later date
• it was agreed that were possible permission from the lair owner should be obtained by the applicant and where not possible, evidence should be made available by the applicant to show they have attempted to contact the relevant persons to authorise an exhumation. No further suggestions for types of evidence were submitted beyond those put forward in the paper

27(2)(d): Provide for applications to be made to inspectors of burial appointed under section 89(1) or such other persons as may be specified. The Group were content.

27(2)(e): Confer discretion on a person mentioned in, or specified under, paragraph (d) to consider applications from persons other than those specified, or falling within a description specified, under paragraph (c). The Group were content.

27(2)(f): Make provision about the procedure to be followed in relation to applications.

• the group agreed that there should be best practice/guidance drafted in relation to the application procedure and process to exhume including seeking the permission of the Commonwealth War Graves Commission and guidance on seeking archaeological advice where appropriate.
• members thought it important to set out that there would be an appeals process within the application process, if an application was refused for any reason
• the group discussed further whether to exhume a body the applicant would be required to use the burial authority staff or funeral director. The consensus was that there should not be a requirement to use a funeral director to exhume but any local policies and procedures would need followed, which the burial authority could put in place
• members generally agreed it would be important to know where the exhumed was going (reinterred in the same grave, move abroad, be cremated etc.) and wondered when this could be incorporated into the process and whether it was appropriate to involve the place where the remains are intended early on in the process
• after discussion, the Group agreed that the regulations should allow for a procedure to be set out in relation to any exhumation application, acknowledging that there may need to be flexibility to allow for different types of exhumation such as lair holder, relatives, non-relatives. No particular suggestions beyond those in the paper were raised by members
• the group further agreed that there should have a maximum response time of 20 working days to respond to requests made to Inspectors and the burial authorities

27(2)(g): Impose requirements on specified persons, or persons of a specified description, in relation to applications. The Group were content.

27(2)(h): Enable a person to whom an application is made to grant the application, refuse the application or grant the application subject to any conditions the person thinks appropriate. The group were content.

27(2)(i): Provide for circumstances in which the regulations (or specified provisions of the regulations) do not apply, or apply with specified modifications. The group were content.

Action: Scottish Government to arrange a meeting about archaeological concerns with representatives with an interest.

4. b. Discussion of Paper 2: Paper on annual permit for exhumation

An overview of Paper 1 was provided, which identifies the need for some other type of application process for burial authorities to carry out exhumation and explore a possible process of such an application. Discussion on paper 2 was opened.

A number of members thought a permit scheme was unnecessary, and that burial authorities should automatically be allowed to exhume bodies, and if concerns were raised the privilege could be removed.

Members raised practical issues such as what constitutes exhumation and whether removing scattered ashes would constitute exhumation. After discussion, the Group agreed on this point that if there was a clump of buried ashes this would be considered exhumation and that this would come out in a feasibility study.

It was agreed by the Group that exhumations are a rare occurrence.

Members agreed that this topic requires more discussion and that it should be added to the next meeting’s agenda.

Action: Scottish Government to consider the permit scheme and come to the next meeting with updated proposals.

Action: Scottish Government to add exhumation to the following meeting’s agenda.

Next steps and closing remarks

The meeting was closed, and members were again thanked for their attendance. Scottish Government Officials’ reiterated that any unanswered questions could be sent to the secretariat and that those who would like to comment on the papers from the meeting should send the comments to the secretariat before the next meeting.

The Secretariat team offered separate meetings with members who felt that they were required

Members were again thanked for sending exhumation application forms and register headings for the correspondence method and the Group were reminded to send any comments on the approach taken to the Secretariat.

The next meeting will be held on the 09 June 2022 via Microsoft teams.