Consultation Analysis Report on a proposed Bill relating to burial and cremation and other matters in Scotland

Conclusion

Overview

159 The consultation process has demonstrated strong support for the vast majority of the proposals set out in the consultation paper. The key concepts set out in the consultation paper have been accepted, including the need to update and modernise the legislative framework governing burial and cremation; consideration of new and emerging methods of disposing of the deceased (such as natural burial, resomation and promession); the pressing need to improve the processes involved in applying for a cremation, including ensuring that there is clarity about the implications of particular processes; and the value in providing an unambiguous route for the applicant for a cremation to state what should happen to the ashes. The consultation also indicated support for regulating the funeral industry, and for addressing funeral poverty.

160 There are a number of areas where additional policy development will be required, either to address detailed proposals that have emerged from the consultation or to reconsider proposals in light of the response to the consultation.

Reuse of burial lairs

161 There was clearly considerable concern about the concept of allowing burial lairs to be reused in certain circumstances, and some of the related proposals, particularly from members of the public who responded to the consultation. Given the sensitivity of this topic, this is perhaps unsurprising. The vast majority of individuals who responded to the consultation answered only those questions relating to burial lair reuse, and most of them opposed the proposal, or at least called for more information about the safeguards that would be put in place to govern the process. Most organisations who responded to this issue supported the proposal, although there were a number who did not, including a small number of burial authorities and the National Association of Funeral Directors.

162 As discussed at paragraphs 63 - 65, a variety of reasons were put forward in opposition to the reuse of lairs. A number of people believed that human remains should not be disturbed for any reason. Others were concerned that lairs in which they had an ongoing interest would be reused without the opportunity to object. A number of responses argued that safeguards needed to be set out to detail the process by which lairs would be selected for reuse. Some responses suggested that reusing lairs would harm the heritage and research value of the burial grounds in which they were located.

163 Although there were a number of well-argued objections to the reuse of burial lairs, the fundamental purpose of the proposal remains valid. In originally suggesting the introduction of lair reuse, the Burial and Cremation Review Group noted the large number of abandoned or unused burial lairs in Scotland and the effect of this on some burial grounds. Key to the Group's recommendation was improving the sustainability of burial grounds, helping to bring back into use some burial grounds which have fallen into disrepair and disuse. In addition, individual lairs which are either abandoned or have never been used potentially offer valuable burial space, allowing people to buy lairs in burial grounds which might otherwise have been unavailable. The Group also suggested that reusing burial lairs would help ease the pressure on burial grounds that is prevalent in some parts of Scotland.

164 The consultation paper set out in detail the proposed process burial authorities would be required to undertake before being able to reuse a burial lair. This would offer people the opportunity to object to the reuse of a particular burial lair, and will enable burial authorities to take steps to try to identify the owner of a lair. Since the only burial lairs that would be initially suitable for potential reuse are those which appear to have been abandoned (eg, where the lair is overgrown or the headstones or other memorials are damaged or have fallen, or where the burial authority does not have current details of the owner) the notification process might help to identify the owner, enabling the burial authority to update its records and giving the owner the opportunity to repair the lair as necessary and undertake regular maintenance.

165 Various consultation responses suggested additional safeguards, particularly the early involvement of archaeological interests, as well as additional ways in which burial authorities might notify people of its intention to reuse a burial lair.

166 The Scottish Government believes that the process described in the consultation paper, together with various suggestions made through the consultation process, offer sufficient safeguards to ensure that the reuse of burial lairs should be included in the Burial and Cremation (Scotland) Bill. While remaining a sensitive subject, the benefits of allowing the reuse of burial lairs warrant the proposal being taken forward in legislation, supporting the sustainability of burial grounds and making burial a more affordable and viable option in places where there is severe pressure on burial land. If the policy came into force it would be an option for burial authorities to use in their management of burial grounds; it would not be mandatory.

167 The Scottish Government will continue to engage with stakeholders to further develop this policy with a view to taking account of the issues raised during the consultation process. This should ensure that the Burial and Cremation (Scotland) Bill contains provisions which offer a robust process for the reuse of lairs with safeguards built into every stage.

Headstones and memorials

168 Related to the reuse of burial lairs, the consultation paper proposed that headstones and memorials associated with such lairs might be suitable for reuse. This proposal was designed to help secure the sustainability of headstones, particularly where the abandonment of the lair had led to the deterioration of the headstone or memorial. A number of objections were raised through the consultation process, including the risk that reusing a headstone might erase or otherwise obscure the original inscription. Some also made the point that a headstone which had not been maintained might not be suitable for reuse.

169 While there was some support for the reuse of headstones, the arguments against the proposal identified a number of tangible problems. Accordingly, this proposal will not be taken forward in the Bill, although further policy proposals will need to be developed for situations where headstones are in such poor condition that it is not possible to repair them or make them safe.

170 The majority of recommendations made by the Burial and Cremation Review Group and the Infant Cremation Commission were set out in the consultation paper as developed policy proposals. A number of other topics were less well-developed and the consultation paper sought views to inform how they might be taken forward.

171 The consultation paper discussed the potential regulation of the funeral industry, and noted how this is done in various countries. There was considerable support for introducing regulation, but no real clarity on the model that might be most effective in Scotland. The Scottish Government will continue to engage with stakeholders to consider ways to introduce regulation of the funeral industry.

172 In 2015 the Scottish Government used powers in the Cremation Act 1902 to appoint Scotland's first Inspector of Crematoria. The Burial and Cremation (Scotland) Bill will expand those powers, but the consultation paper also proposed the introduction of new inspection powers, potentially covering burial grounds and the funeral industry generally. There was broad support for these proposals, and the Scottish Government will continue to develop policy proposals, working with relevant stakeholders, to include provisions in the Bill.

173 The consultation paper also asked questions about ways to tackle funeral poverty. Relatively few respondents answered this question in any detail, but those who did made a number of interesting suggestions. There was clear support for addressing the rise costs of funerals generally, but few of the proposals put forward are suitable for legislation. Nonetheless, the Scottish Government will explore ways to develop these proposals in non-legislative ways while continuing to examine ways in which funeral costs might be tackled in the Bill.