Consultation on a Proposed Bill Relating to Burial and Cremation and Other Related Matters in Scotland - Web Only

The legislative framework

Extant legislation

14 The legislation covering burial and cremation in Scotland is old, dating back to 1855 and 1902 respectively. As a result of amendments over the years, particularly to cremation legislation - often because of more modern legislation being introduced on related topics or changes required to reflect practice - the legal framework is piecemeal, with various provisions having been added or repealed since the introduction of the primary legislation. There has never been a systematic review and overhaul of the legislation governing burial and cremation, and much of it is no longer sufficient for the needs of 21^st Century Scotland.

15 There are several pieces of legislation covering this subject:

• Burial Grounds (Scotland) Act 1855^[7]
• Burial Grounds (Scotland) Amendment Act 1886^[8] (which amended the 1855 Act)
• Cremation Act 1902^[9]
• Cremation (Scotland) Regulations 1935^[10]
• Cremation Act 1952^[11] (which amended the 1902 Act)
• Cremation (Scotland) Regulations 1952^[12]
• Cremation (Scotland) Amendment Regulations 1967^[13]
• Cremation (Scotland) Amendment Regulations 1985^[14]
• Cremation (Scotland) Amendment Regulations 2003^[15]

While this legislation has been amended substantially over the years, it has not been comprehensively updated or consolidated.

16 One of the Burial and Cremation Review Group's key recommendations was that the current legislative framework should be updated and modernised. This will require repealing existing primary and secondary legislation and replacing it with a single piece of primary legislation, which will contain regulation-making powers. New regulations will need to be introduced to replace existing regulations. As with the primary legislation, this will provide the opportunity to consolidate and modernise secondary legislation.

17 This approach will consolidate those parts of the existing framework which continue to be relevant, but will enable them to be modernised and considered afresh. It will also implement the recommendations of the Burial and Cremation Review Group and the Infant Cremation Commission. These recommendations cover new provisions which will be introduced into legislation for the first time, as well as updating existing provisions to reflect modern needs and practices.

Q1 - Do you agree that existing legislation relating to burial and cremation should be repealed and replaced by a new legislative framework?

Q2 - Are there any particular powers that are required by Burial Authorities or Cremation Authorities that are not provided for by current legislation?

Extent of legislation

Cemeteries

18 Scotland has both publicly and privately run cemeteries. Those which are publicly run are managed and operated by local authorities. Current legislation regarding the operation of cemeteries applies only to those which are operated by local authorities, which for this purpose are referred to as 'Burial Authorities'.

19 While the legislation relates only to publicly run cemeteries, most private operators tend to follow the legislation voluntarily.

Crematoria

20 There are 27 crematoria in Scotland, 14 of which are operated by local authorities, with 13 privately operated and one operated jointly by a local authority and a private company. A list of the crematoria in Scotland is at Annex B. Legislation which relates to cremation applies to all crematoria, regardless of whether they are publically or privately owned. The legislation refers to the operators as 'Cremation Authorities'.

21 The Burial and Review Group recommended that the new legal framework should apply to all cemeteries, regardless of whether they are publicly or privately run, and all crematoria. Overall responsibility for public burial grounds should remain with local authorities. This approach will provide a consistent legal framework governing all cemeteries and crematoria.

22 Given that all Cremation Authorities are required to comply with current legislation, this proposal should not place any particular new legislative burdens on crematorium operators. Similarly, although private operators of cemeteries are not required to comply with current legislation, the fact that the majority do so voluntarily should minimise any additional legislative burdens as a result of this proposal. Nonetheless, the Scottish Government will carry out a full Business and Regulatory Impact Assessment (BRIA) to assess the likely impact of this proposal.

Q3 - Do you agree that the proposed Burial and Cremation (Scotland) Bill should apply to all cemeteries and crematoria in Scotland, regardless of whether they are publically or privately operated? If not, please set out reasons why not.

Places where other forms of disposal are carried out

23 The Burial and Cremation Review Group considered new techniques for disposing of human remains. Although many of these techniques are still being developed, it is likely that there will be demand for them in the future. None of these methods are yet in operation in Scotland, but they have the potential to become so - this is discussed in more detail at paragraphs 29-30. The Group recommended that new legislation should be made in such a way as to allow these techniques to be used in the future as appropriate.

24 It is not proposed to legislate for any specific alternative technique at the moment. However, it may be sensible to broaden the scope of the primary legislation to ensure that any new technology or method for disposing of human remains which is introduced in Scotland at a later date falls within the legal framework.

25 In view of the development of an increasing number of alternative techniques, it is proposed that legislation should apply to the places where such practices may be carried out.

Q4 - Do you agree that the Bill should contain provisions which apply to all facilities where any new method of disposal which might be introduced in Scotland are carried out?

26 Similarly, there is increasing demand for currently available environmentally friendly methods of disposing of human remains, such as natural burial. New legislation will allow such methods to be regulated appropriately.

Q5 - Do you agree that the Bill should contain provisions to regulate environmentally friendly methods of disposal that are already available in Scotland?

Private burial and cremation

27 Home burial is not covered by legislation, but is not illegal in Scotland. The Burial and Cremation Review Group recommended legislating for home burial to remove any uncertainty and to ensure that the practice is in line with burials carried out by Burial Authorities. A home burial would require various authorisations, including permission from the Local Authority and consent from any other relevant organisation, such as SEPA. Each organisation would be required to maintain its own records of the burial, but the main record of the burial would be that kept by the local authority. It is proposed that the Burial and Cremation (Scotland) Bill will provide powers for Scottish Ministers to make regulations setting out the detail of home burial requirements.

Q6 - Should the Burial and Cremation (Scotland) Bill contain provisions pertaining to home burial?

Q7 - In making legal provision for home burial, what factors should be considered?

28 Unlike home burial, private cremation (ie, cremation which occurs outside a recognised crematorium) is illegal. To achieve absolute clarity, the Burial and Cremation Review Group recommended that legislation should state that private cremation is not legal. Regulation 3 of the Cremation (Scotland) Regulations 1935 states that 'no cremation of human remains shall take place except in a crematorium of the opening of which notice been given to the Secretary of State and to the Department'. In repealing existing legislation to create a new, modernised legislative framework, it is proposed to retain this restriction that cremations may take place only in crematoria.

Q8 - Are there are any reasons why private cremation should not remain illegal?

Alternative methods

29 The Burial and Cremation Review Group considered various alternative means of disposing of human remains, including burial and cremation techniques which are considered more environmentally friendly than traditional methods, such as natural burial, which does not involve chemicals. The Group also considered new techniques which do not involve burial or cremation. For example, resomation involves placing the body in a chemical solution, which breaks down the body to leave bone ash and a sterile liquid. Other techniques include promession, which involves the body being freeze-dried and then vibrated into ashes, which are then buried. These and other techniques are currently in different stages of development, although some have been legislated for in various jurisdictions - for example, the Government of New South Wales has included resomation in its legal definition of cremation. ^[16]

30 Since many of the existing techniques are still in development, and as it is likely that more new techniques will be developed, it is proposed that the Burial and Cremation (Scotland) Bill should include a power for Scottish Ministers to make regulations in relation to specific techniques. This will allow particular techniques to be regulated when they are considered viable and acceptable for use in Scotland.

Q9 - Do you agree that alternative methods of disposing of the dead should be regulated for in this way? Are there any particular alternative methods that should be considered? Are there any particular methods which should be prevented from being used in Scotland?

Definition of 'ashes'

31 There is no clear definition of 'ashes' in current legislation. In practice various different remains may be considered as ashes after a cremation, and in the past this has led to misunderstanding and confusion. The Infant Cremation Commission recommended that 'ashes' should be defined in legislation as 'all that is left in the cremator at the end of the cremation process and following the removal of any metal'. This will provide a single definition which will ensure that any remains left after all cremations will be regarded as ashes.

Q10 - Do you agree with this definition of ashes? If not, how should ashes be defined?

Minimum distance between crematoria and housing

32 Section 5 of the 1902 Act states that 'no crematorium shall be constructed nearer to any dwelling house than two hundred yards, except with the consent, in writing, of the owner, lessee, and occupier of such house, nor within fifty yards of any public highway, nor in the consecrated part of the burial ground of any burial authority'. The Burial and Cremation Review Group considered that such minimum distances should be maintained (converted to metric measurements) when modernising the legislation, and in the 2010 consultation, the majority of responses to this issue agreed.

33 Since then it has become apparent that in a small number of cases this minimum distance has not been complied with, resulting in legal disputes between homeowners and occupiers and developers. In such instances, it is likely that planning requirements have been met fully, since land use conditions imposed by other legislation are not necessarily material considerations when making planning decisions. It is the responsibility of developers or landowners to ensure that other legal requirements are met.

34 The requirements of section 5 of the 1902 Act help provide a secluded, private space for cremations as well as establishing a suitable distance between crematoria and housing. As such, it is the Scottish Government's view that a minimum distance should be maintained and that enforcement powers should be introduced to ensure that such requirements are not breached.

Q11 - Do you agree that a minimum distance of 200 yards (182.9 metres) should be required between crematoria and housing? If not, please explain why not.

Q12 - What are your views on the use of enforcement powers or penalty powers in response to such a minimum distance being breached?