Burial Regulations Working Group minutes: March 2022

Attendees and apologies

Attendees

• Alasdair McKenzie, Historic Environment Scotland
• Brian Corrigan, Cruse Bereavement Care
• Brendan Day, Federation of Burial and Cremation Authorities (FBCA)
• David MacColl, Glasgow City Council
• Declan Maguire, National Society of Allied & Independent Funeral Directors (SAIF)
• Elaine Schendel, East Ayrshire Council
• Fiona Porter, North Ayrshire Council
• Gordon Findlater, Inspector of Burial, Cremation and Funeral Directors
• Iain Campbell, Comhairle nan Eilean Siar (Western Isles Council)
• James Morris, William Purves Funeral Directors on behalf of Tim Purves
• 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 Proffitt, Edinburgh Crematorium Ltd.
• Julie Dunk, Institute of Cemetery and Crematorium Management (ICCM)
• Katie Huxtable, Commonwealth War Graves Commission (CWGC)
• 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

Scottish Government

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

Apologies

• John MacLean, Highland Council
• Nick Britten, National Association of Funeral Directors (NAFD)
• Nicola Welsh, Held in our Hearts
• Russell Brooks, National Association of Monumental Masons (NAMM)
• Tim Purves, William Purves Funeral Director

Items and actions

Welcome and introductions

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

An overview of the meeting agenda, and apologies were provided.

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

The previous minutes were reviewed and the formatting changes were highlighted for both the December 2021 and January 2022 minutes:

• review of December 2021 meeting minutes: It was noted that formatting changes had been made but not content changes and that the minutes would be published as previously agreed
• review of January 2022 meeting minutes: 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 6: management of a burial ground

Section 6 of the Act allows the Scottish Ministers to make provision for, or in connection with, the management, regulation and control by a burial authority of a burial ground. In relation to this the Scottish Government and working group members agree that burial authorities will have a management plan for each burial ground.

The content of the management plan will be considered with the group, with the intention to agree, by correspondence, burial application forms, burial registers and the content of management plans. Members were asked to send any comments on this proposal by email to the Secretariat. Thanks was given to those who already sent their burial application forms and register headings to the secretariat.

Action: Members to send any comments on the correspondence items to the secretariat.

Discussion of paper 1: Burial and Cremation Act 2016, Proposals for the Regulation of Burial Ground Management

An overview of Paper 1 was provided which sets out a summary of what had already been agreed by the group and further points of discussion. Discussion was opened on those subsections not already agreed within section 6(2).

6(2)(a): the maintenance of burial grounds, buildings, walls, fences or other structures erected on burial grounds

There was discussion on whether inspection regimes for burial grounds should be documented in the management plan. Many burial authorities thought that a high level statement about inspection regimes within the management plan would be more suitable than detailing the inspection schedules themselves. This was due to concerns about the complexity of the inspection schedules , for example, certain grounds requiring more visits within a rolling cycle, and any extenuating circumstances where by the inspection regime may be required to pause, the example given being coronavirus.

Members suggested, as an alternative, that the mana.gement plan could link to the documents used by the burial authority to determine how often a burial ground needs inspected. This, and a high level statement, was favoured by burial authorities.

The group agreed that recording inspection outcomes would be possible and was predominantly already the case. It was raised that records should be able to be kept electronically, which was agreed. There was discussion about how inspection records are currently held and whether there would be benefit in storing records as sets of records or in one place to create a ‘living record’ which could be useful for both management and heritage purposes. In addition to traditional records, other forms of record keeping could be used, such as photographic records.

In relation to record keeping, there did not appear to be a single standard approach across Scotland, but some members noted that within their burial grounds, maintenance records are currently kept for up to a year and any recorded safety concerns and associated actions taken are kept indefinitely. A standardised approach to record retention may be considered. During discussion it was noted that new headstones typically come with a 30 year minimum guarantee as standard, which could inform thinking around record keeping.

The group came to a consensus that it would be appropriate to include a high level statement about inspection within the management plan, however, highlighted again that the statement would need to be appropriate.

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

It was clarified to the group that subsection 6(2)(c) would not require burial authorities to make up to the point of entry accessible, but rather make the entrance and inside the burial ground as accessible as reasonably possible.

This lead to discussion as a number of burial authorities raised that they manage burial grounds which are not easily reached and that this would practically limit accessibility. Burial authorities may own or inherit the burial ground itself but not the surrounding land / paths / roads / car parks which leads to land ownership and maintenance issues. In these instances, the burial authority would. Members highlighted that accessibility is currently covered by the Equality Act 2010 and that records may already be kept for insurance purposes. Some members suggested that new burial grounds should be fully accessible and that this should be built into the planning stage.

After discussion, the group came to a general consensus that anything access-related would be considered further when developing the regulations and further developed in guidance.

6(2)(d): the maintenance and repair of memorials, buildings and other structures on burial grounds (including for the purpose of making them safe)

There was significant discussion regarding what requirements / guidance should be included for preserving heritage and how to balance this with the need for flexibility for burial authorities to make memorials safe. Concerns were raised about the rising cost of measures to make memorials safe, and that if regulations were made so that burial authorities would be required to preserve all memorials, many burial authorities would not be able to meet the requirements. Though some members expressed that there should be some requirements for burial authorities around maintaining and preserving historical memorials.

Consideration was given to treating historically significant memorials separately to the majority of memorials, however, no conclusion was reached on how to identify historically significant memorials. The point was raised that all memorials could be technically considered to have historical significance.

During discussion it was noted that there was very little existing guidance around memorial maintenance and safety for historic memorials. Historic Environment Scotland (HES) had previously produced guidance on emergency measures to make historic memorials safe but that guidance now required updating. It was acknowledged that existing guidance such as the HES guidance and the SG Memorial Safety Guidance could be used to inform the future Code of Practice and/or Scottish Government Guidance.  It would be useful if this guidance also contained high level principles on how to identify a gravestone that has historic or cultural significance.

On contacting the lair holder regarding maintenance and repairs , consideration was given to what a ‘reasonable’ attempt to contact the lair holder would mean in practice and whether the principle would be enforceable. It was noted by a number of members that previous attempts at contacting lair holders produced few responses. The group concluded that it would be more appropriate for the process to contact a lair holder to be set out in guidance rather than in regulation. Suggestions, including raising awareness to the responsibilities of lair holders, might help this process and would work well as a first step.

Burial authorities have previously been criticised by the Health and Safety Executive (HSE) for the length of time taken to make a memorial safe once identified as unsafe. Which was, again, highlighted in the APSE article on memorial inspection that found time burial authorities left a dangerous memorial whilst trying to contact lair holder concerning.

The group broadly came to a consensus that the regulations should give the burial authority power to take what action was deemed necessary to make a memorial safe in an appropriate timeframe. It was further agreed that burial authorities should have to have regard to the code of practice and / or guidance produced on the most effective ways to make safe historic memorials.

6(2)(e): the charging of fees by local authority burial authorities, in respect of such matters as may be specified in the regulations

A number of local authorities noted they have previously tried to contact lair holders to request payment for repairs or maintenance of a memorial, but that these attempts often lead to no responses. Members highlighted that a legal process for contacting lair holders in England is set out in the Local Authorities’ Cemetery Order 1977 (LACO), and a similar approach could be considered for Scotland.

In practice, burial authorities did not contact the lair holder before making safe a memorial. Once the memorial had been made safe, the lair owner would be contacted and requested to arrange and pay for repairs. It would therefore not be appropriate to add to the code of practice that no profits should be made from repair because it was for the lair owner themselves to source a memorial mason to undertake the repair.

The group previously decided that the local authority burial authorities should have the powers, within the regulations, to be able to charge a fee for the repair or maintenance of memorials or structures within a burial ground.

6(2)(i): the depth at which human remains may be buried

Some burial authorities highlighted that a minimum depth of 2ft would not be achievable in every circumstance due to the nature of some sites, for example, in areas with rocky ground. Other members noted that if 2ft was not manageable, alternative arrangements would be made, such as the lair being slabbed over. LACO was also noted to provide guidance on chambers for shallow graves, which could be drawn upon. It was queried whether Scottish Environment Protection Agency (SEPA) has a view on the minimum depth of a lair.

After discussion, the group concluded that it would be appropriate to include information about minimum depths in guidance but that no minimum depth should be included in regulation.

Action: Scottish Government to contact SEPA for their views on the depth of a lair.

Action: Scottish Government to share links to the reports and Acts mentioned in discussion.

3. b. discussion of paper 2: Management of Burial Grounds – Training Requirements

An overview of Paper 2 was provided, which sets out the current range of accredited training courses that would be applicable for burial authority employees working in Scotland. Non-accredited training is available for burial authorities, although only accredited training levels could be included in the regulations. A summary of what occurred and the rationale for the training requirement in the Cremation (Scotland) Regulations 2019 was provided.

The Burial Review Group’s report recommended that ‘Memorial Masons operating in cemeteries/churchyards (both local authority and private) should be able to show that they have the proper training, certificates and accreditation for both business and fixers. Considerations around training may also have been raised in the Fatal Accident Inquiry into Craigton Cemetery, although further clarification was requested on this point.

The group acknowledged that they would like to see every member of staff, including managers, trained to the appropriate standard for their role and to ensure that Continuing Professional Development (CPD) was undertaken by staff.

On memorial mason training, some burial authorities noted that they require memorial masons to have public liability insurance (PLI), although it was unclear whether every memorial mason had completed accredited training courses and it was noted that being trained to a satisfactory level was not a requirement for PLI. Burial authorities noted an increase of unregulated memorial cleaners, some of whom use bleach which had a negative impact on the environment.

General consensus was that requiring staff to have successfully completed accredited training was desirable for the future but not possible at this time. However, the regulations should include a high level provision about training, similar to that of the cremation regulations. In future revisions of the Code of Practice it might be appropriate to include more specific training requirements.

Action: Glasgow City Council to send Scottish Government further information on the training recommendations in the FAI.

Action: Historic Environment Scotland to follow-up with thoughts on how they could support CPD around working with historic memorial and structures.

3. b. discussion of paper 3: Management of Burial Grounds – Classifications of Burial Grounds

An overview of paper 3, which provided the wider context around classes of burial grounds outside of Scotland, was provided. Proposed definitions of active and inactive burial grounds were suggested for discussion.

The group generally agreed that there would not be a benefit to defining burial grounds as ‘active’ and ‘inactive’. To do so might give the impression that different levels of service could be provided to the deceased and bereaved dependant on the burial ground. The definition of active and inactive would not sit well alongside the introduction of re-use of lairs and communities may still use the burial ground even if it’s deemed inactive and definitions therefore could be misleading.

It was suggested that a values based approach might be more appropriate, especially for more historical grounds. A values based approach would enable burial authorities to manage burial grounds based on the value represented by each burial ground, for example, what type of features the burial ground had e.g. historic and/or of cultural significance. The same values based principles could be applied to burial grounds across the board. Historic sites went far beyond those designated as listed. Currently less than 5% of sites of historical importance were designated as listed (and therefore managed by organisations such as Historic Environment Scotland). Currently, pre-1920s and war sites are generally deemed ‘historical’, although, when considering if historical could be defined, the group agreed this approach would not be appropriate as history is always being made.

The group tended to agree that any definitions or the values based approach could be set out in guidance rather than regulations.

Action: Scottish Government to arrange a meeting with National Committee on Carved Stones in Scotland, Historic Environment Scotland and Association of Local Authority Archaeological Officers (ALGAO) UK to discuss a values based approach further.

Action: Scottish Government to consider other ways of defining or classifying burial grounds.

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.

Members were again thanked for sending burial 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 21 April 2022 via Microsoft teams.