Burial Regulations Working Group minutes: June 2022

Attendees and apologies

• Alasdair McKenzie, Historic Environment Scotland
• David MacColl, Glasgow City Council
• Elaine Schendel, East Ayrshire Council
• Fiona Porter, North Ayrshire Council
• Iain Campbell, Comhairle nan Eilean Siar (Western Isles Council)
• Ian Kearns, Inverclyde Council and the Federation of Burial and Cremation Authorities (FBCA)
• Jane Matheson, City of Edinburgh Council
• John Downes, Glasgow City Council and the Scottish Bereavement Benchmarking Group (SBBG)
• John Lawson, Association of Local Authority Archaeological Officers (ALGAO) UK
• John MacLean, Highland Council
• John Proffitt, Edinburgh Crematorium Ltd.
• Julie Dunk, Institute of Cemetery and Crematorium Management (ICCM)
• Katie Huxtable, Commonwealth War Graves Commission (CWGC)
• Liz Murphy, Fife Council
• Nicola Welsh, Held in our Hearts
• Robert Swanson, Senior Inspector of Burial, Cremation and Funeral Directors
• Shirley Bruce, Aberdeenshire Council
• Susan Buckham, National Committee on Carved Stones in Scotland (NCCSS)
• Yvonne Scott, Shetland Islands Council

Scottish Government

• Cheryl Paris, Burial and Cremation, Anatomy and Death Certification
• Euan Mcardle, Burial and Cremation, Anatomy and Death Certification
• Kim Hunter, Burial and Cremation, Anatomy and Death Certification

Apologies

• Cruse Bereavement Care
• Brendan Day, Federation of Burial and Cremation Authorities (FBCA)
• Gordon Findlater, Inspector of Burial, Cremation and Funeral Directors
• Sam Harris, Orkney Islands Council
• Tim Purves, William Purves Funeral Directors
• Nick Britten, National Association of Funeral Directors (NAFD)
• Yvonne Wilson, National Association of Memorial Masons

 

Items and actions

Welcome and introductions

The meeting was opened and members were thanked for their attendance at the 7th meeting of the Burial Regulations Working Group.

An overview of the meeting agenda was provided.

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

The minutes of the 6th 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.

Updates from the Scottish Government

Officials provided an update at the meeting on the work progressed and the update to the papers of this meeting.

Continuation of discussion on exhumation process for local authorities

An overview of the revised version of previous meeting’s paper 2 was provided, which identifies the need for an exhumation permit or other way to allow burial authorities to carry out exhumation and explores a possible process of such an application.

Officials noted that the permit might not need to be annual and that it might be better aligned as a three year permit. The inspectorate for the funeral sector would process the applications, send reminds for renewal etc. and that there would be no requirement to have one if exhumations will not be completed by the burial authority. Officials noted that there was some concerns raised at the previous meeting on this approach which were since explored:

• some members were concerned that a blanket permit for exhumations would allow for burial authorities to exhume without relevant parties agreement, such as the Commonwealth War Graves Commission and archaeological officers.
• need was expressed to ensure that appropriate parties are informed and that there are protections in place
• it was confirmed that the exhumation permits in question would not be intended for the mass clearing of graves, and that this would be considered under the reuse of lairs
• it was highlighted that in England there is currently a fast-track process for exhumations which works well in the times it is required. Officials will look at this process
• it was agreed for all exhumations feasibility studies should be carried out. And after discussion, burial authorities agreed that all exhumation applications should be sent to the Inspectors of Burial and that there is not be a need for a permit and that all exhumations should be considered equally
• burial authorities considered that a fast-track application for exhumation may be required in certain circumstances. The Group agreed if this process was followed that there would not need to be a permit for exhumation. Other accommodations such as a retrospective applications were also mentioned

Action: Scottish Government to explore the fast-track process for exhumation used in England and incorporate any lessons learned into the process being developed for the regulations.

Implementation of section 22 on private burial

Section 22 of the Act allows the Scottish Ministers to make provision for, or in connection with, the private burial of human remains. Private burial applications will always need to be approved by the local authority under s22(3) of the 2016 Act. 

In relation to this, a private burial application and register for private burial will be prepared for consideration by the Group. This will be done via correspondence as previously agreed. Members were asked to send any comments on private burial applications and registers by email to the Secretariat.

Action: Members to send comments on private burial application forms and registers to the Secretariat.

Discussion on paper 1: regulation of private burial

An overview of paper 1 was provided, which examines sections 22(5) of the 2016 Act and examines the section and associated subsections for discussion by the Group. Consideration was given to whether a national or local approach should be taken. Discussion on paper 1 was opened

22(5)(a): make provision about applications to carry out private burials

• the Group were content that a national application form for private burial should be prepared

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

• the Group considered it would be possible to allow those to apply for private burial in advance of death, however, this application would need to be time limited, and subject to conditions including land ownership, land use, a feasibility study and assurance that the burial will not impact on other legislation
• these considerations will be incorporated into thinking about from whom permission will be required from for an application for private, as is discussed later in the paper
• after discussion the Group were content

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

• consideration was given to supporting documents including the need for a feasibility study, input from a number of agencies, including but not limited to, relevant heritage organisations such as  or Historic Environment Scotland Local Authority Archaeological Advisers; Planning departments; SEPA; Scottish Water; and development rights
• it was noted by officials that the nature of the documentation and the types of proof or ‘permission’ each organisation may wish to provide could be different and is still an ongoing discussion. Broadly it was noted that some organisations may be content with only proof of following guidance or of already having the right to privately bury
• it was highlighted that consideration should be given to the Acts which effect listed buildings, conservation areas, scheduled Ancient Monuments and non-designated archaeological or historic assets, as well as the guidance in relation to monuments. Officials noted that local ordinances and areas (such as conservation areas) would also be respected by these regulations
• the Group considered it necessary that the bereavement department within the local authority deal with private burial applications due to their expertise in the area and that nuances might be missed by other departments. However, it was not agreed that local authority bereavement departments should be the main oversight body which ensures all documentation is satisfactorily submitted
• the Group requested sight of East Ayrshire Council’s current guidance documents on private burial and noted that it currently lays out an approach to private burial that works well. Officials noted that elements of existing processes that work will be looked at to incorporate them into the process laid out under these regulations
• the Group considered that it was necessary that some form of documentation be submitted alongside an application and was content with the list of organisations provided. Officials will continue to develop this process with the Groups feedback in mind

22(5)(e): make provision for the time at which such documents are to be submitted.

• the Group were content

22(5)(f): make provision about persons, or a description of persons, who are required to submit such documents.

• the Group were content

22(5)(g): make provision for, or in connection with, the charging of fees by local authorities in respect of applications to carry out private burials

• the Group suggested taking an approach similar to current planning fees
• the Group agreed that this provision should allow local authority burial authorities to charge any fees they feel appropriate in relation to the application process for private burial

22(5)(h): specify persons or a description of persons from whom consent to proposed private burials is to be obtained, and by whom consent to proposed private burials is to be signified as having been obtained in, or in relation to, applications to carry out private burials.

• the Group considered that it might be useful to add organisations like Nature Scot, Local Authority Archaeological Advisers and Historic Environment Scotland to the suggested list provided in the paper, who could cover heritage considerations
• it was noted that permission may be given ‘implicitly’ by organisations intended to be involved in the process of applying for private burial and that this could be left to the determination of the organisation(s) in question to determine what is most appropriate for them
• the Group were content with the list of permission granting organisations proposed and that those organisations should be required to grant some form of permission as part of the application for private burial

22(5)(i): require persons making such applications to provide the local authority to which the application is made with any further information in connection with the application that the authority considers necessary.

• the Group were content

22(5)(j): specify the circumstances in which a local authority receiving an application to carry out a private burial must authorise the carrying out of the burial, may authorise the carrying out of the burial, must not authorise the carrying out of the burial, must or may authorise the carrying out of the burial subject to conditions specified by the authority or in the regulations.

• the Group considered that detail should be held in the Code of Practice or guidance regarding when an application should be refused or accepted
• the Group considered it important that all incomplete applications should be refused. The Group also considered heritage and archaeological concerns as grounds for refusal
• it was considered by the Group that applications which meet all the requirements for permission/documentation and have successfully filled in the application form should be accepted in principle. There was general agreement with this but feeling this could also be further fleshed out in the Code of Practice of Guidance
• following discussion, the Group were content, although agreed that this section would need developed further

22(5)(k): 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.

• the Group preferred a standardised approach to the forms
• the Group were content

22(5)(m): 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

• the Group considered it important to authorise the wishes of the applicant, where possible, and thought that a report to the Inspector of Burial should be provided where an application is refused
• the Group considered that refusals may better responded to by applications with reapplications instead of appeals. Members also suggested that appeals may not land directly with the burial authority but rather an agency what would need to confirm they are content with the private burial, for example, Scottish Water
• it was discussed whether any third party persons should be able to appeal a decision on private burial, e.g. neighbours of a property which is intending to privately bury
• the Group considered it appropriate to continue developing this provision before agreement can be reached. Officials will continue to explore an appropriate system for appeals that incorporates the concerns expressed by the Working Group

Action: Scottish Government to explore further options for a possible appeals system for private burial.

22(5)(n): make provision for or in connection with the size of any area of land on which private burials may be carried out, by reference to any such size, the maximum number of private burials that may be carried out on the land, minimum distances between lairs on such land.

• the Group agreed on a case-by-case approach and that this would be put into guidance and that no regulations would be written under this provision

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

Action: Scottish Government to share links to the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Ancient Monuments and Archaeological Areas Act 1979 with the Group.

Action: East Ayrshire Council to share their current guidance on private burial with the Group.

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 reminded that any views on private burial and the application forms could be sent to the Secretariat.

The next meeting will be held on the 14 July 2022 via Microsoft teams.