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

Alleviating pressure on burial grounds

Overview

58 The Burial and Cremation Review Group examined the increasing pressure on burial land in Scotland. There are a number of reasons for this pressure, including high levels of development and subsequently higher land prices. The Group noted that this situation is prevalent across Scotland, but particularly in urban areas. There is considerable pressure on land in Edinburgh, for example, and scoping work undertaken by the City of Edinburgh Council at the time of the Burial and Cremation Review Group had not identified any potential land for future use.^[21]

59 This situation has had a number of consequences, including contributing to the rising cost of burial and leading to new cemeteries being sited increasingly far from communities. Some cemeteries have also closed because no more space is available. The Group suggested that this had the potential to cause various problems, including reducing the number of visitors to burial grounds which in turn might increase the likelihood of vandalism and gravestones and memorials falling into disrepair, as well as generally reducing the availability of burial as an option. The Group made several recommendations to reduce the current pressure on burial land.

End of sale of lairs in perpetuity

60 Key to these recommendations is the reuse of burial lairs in given circumstances, as well as bringing back into use some lairs which are sold but which have unused space. The sale of burial lairs in perpetuity has been allowed in Scotland for many years - this means that the descendants of those people who bought the lair originally still have exclusive rights of use, but are also responsible for the upkeep and maintenance of the lair, including any headstones or other memorials. In practice, it can be difficult to trace the owners of such lairs after the first two generations. As such, burial lairs may remain unused or fall into disrepair while the care of the lair defaults to the local authority.

61 The Group recommended that the sale of burial lairs in perpetuity should end and be replaced by a limited tenure of 25 years in the first instance, which could be extended in 10-year periods for as long as interest in the lair remained, either through the original purchaser or someone else to whom the interest passed. This would still allow a person to purchase a lair and have exclusive rights to bury in that lair for a given period of time, but would require that interest to be maintained and renewed in 10-year periods to ensure that a current link was maintained between the lair and its owner.

62 In order to maintain his or her interest at the end of the initial 25-year period, it is proposed that the owner of the lair (or his or her representative) would have to contact the Burial Authority to extend his or her ownership. The Burial Authority would be required to maintain an up-to-date register of lairs and their owners, but the responsibility for taking action to extend ownership at the end of either the initial 25-year period or any subsequent 10-year period would fall to the owner or the owner's representative. If the original ownership is not extended at the end of the period, ownership would revert to the Burial Authority. The cost of both the original purchase and any subsequent extension of the interest would be set by the Burial Authority.

63 This proposal would reduce the current risk that the Burial Authority loses contact with the owner of a lair, and would place the responsibility of maintaining an interest in the lair on the owner, whether the original owner or someone to whom ownership has passed. This should help ensure that an active interest in a lair was maintained, helping to prevent lairs falling into disrepair.

64 During these periods of tenure, the owner of the lair would have the sole right to apply for the erection of a headstone or memorial on the lair, and would also be responsible for the upkeep of the lair. The Burial Authority would be able to place restrictions and conditions on the size and type of headstone or memorial.

65 The sale of burial lairs is currently undertaken by Burial Authorities, and no change to this situation is proposed. However, the Group recommended that it should no longer be possible to sell blocks of lairs or multiple lairs to an individual. It also recommended that the Burial Authority should have the right to refuse a sale if it believes that it will not be used imminently, although the Group did not specify what was meant by 'imminently. As such, views are sought on what period should constitute 'imminent' in this context. The Scottish Government's view is that no lairs should be sold if it is unlikely that they will be used within the initial 25 year period.

Q22 - Do you agree that the sale of lairs in perpetuity should be ended?

Q23 - Does the proposed alternative approach provide a suitable balance between enabling people to buy lairs and safeguarding lairs for the future?

Q24 - Should there be any restrictions about to whom the owner of a lair can transfer his or her interest? Should this be restricted to family members?

Q25 - Do you agree that Burial Authorities should no longer be able to sell multiple lairs or blocks of lairs to an individual?

Q26 - The Burial and Cremation Review Group recommended that Burial Authorities may refuse to sell a lair if it believes that it is not for imminent use. How long should constitute 'imminent' in this situation? How could this be tested?

Reuse of full lairs and use of partially-full and unused lairs

66 In conjunction with the recommended end to the sale of burial lairs in perpetuity, the Group also considered the reuse of full lairs and the use of lairs which have unused space, and recommended both as ways to further reduce pressure on burial grounds. This is something that may already happen in family lairs, and is a practice that is becoming increasingly prevalent elsewhere beyond family plots. Shortage of burial land in London has led to the introduction of legislation which allows the reuse of graves in particular circumstances (see case study), and in 2004 the UK Government consulted on this issue as it pertains to England and Wales generally.^[22] In other countries it is common practice - Germany and Sweden both reuse graves after between 20 and 30 years, and several other Europeans countries also routinely reuse graves after a given period of time, including Italy and Greece.

67 It is not proposed that graves in Scotland would automatically be reused after a given period of time; rather that certain graves may be considered for reuse where appropriate to help alleviate pressure on burial land. If this proposal were to be accepted and implemented in legislation, strict safeguards would exist to ensure that any such use was done appropriately and sensitively.

Q27 - Do you agree with the proposal that full lairs and partially-full and unused lairs should be considered for reuse in certain circumstances with appropriate safeguards in place?

Full lairs

68 In the case of full lairs, only those where the last burial took place at least 75 years ago and where the Burial Authority has taken ownership of the lair or intends to do so (because the owner cannot be traced) would be considered for reuse. Having identified potentially suitable lairs, the Burial Authority would be expected to undertake various consultations to ensure that there were no reasons why the lair could not be reused.

Q28 - Is a period of 75 years sufficient before reuse of a full lair can be considered?

69 The initial consultation would be to ensure that the potential reuse of a lair took account of relevant heritage and planning matters. As such, relevant authorities (for example, Historic Scotland) would require to be consulted and the Burial Authority would be required to obtain appropriate legal permits where a lair was scheduled under the terms of the Ancient Monuments and Archaeological Areas Act 1979; listed under the terms of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997; included in a Conservation Area under the terms of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997; or included in the Inventory of Gardens and Designed Landscapes in Scotland.

70 Where it is proposed to reuse lairs in cemeteries which are used for particular religious and faith groups or where a given lair is in a section of a cemetery used by a particular religious or faith group, the Burial Authority must specifically consult with that community. If the community objected to the proposal, reuse could not take place.

71 Only if no objections are received from relevant authorities and any religious or faith groups with a specific interest in given lairs will Burial Authorities be able to proceed to publically advertising its intention to reuse the lair.

72 The Burial Authority would be required to advertise its intention to reuse the lair for a period of at least 12 months; this would allow anyone with an interest in the lair, including family members, to object to the proposed reuse. The Burial Authority would be required to place notices in the cemetery and use a variety of other means to advertise its intentions, including for example the local press and the internet. If any surviving relative came forward to object to the reuse of the lair, then reuse would not be permitted.

73 A key aim of the Burial and Cremation Review Group is to find ways to stop lairs falling into disuse and disrepair. Advertising its intention to reuse a lair may help to identify someone who has rights in relation to the lair - for example, a descendent of the original owner. As such, ordinarily the objector would then become responsible for upkeep and maintenance of the lair and any memorials. However, the requirement to become responsible for the lair should not be a disincentive to objecting to the potential reuse of a lair.

74 If someone who is not a surviving relative objected to the proposed reuse of the lair, the Burial Authority should consider whether that objection should prevent the lair being reused. If the Burial Authority decided to continue with the reuse, it would be required to state publically their reasons for rejecting the objection. Where such an objection stopped the proposed reuse, the objector should not become responsible for the lair. Instead, the Burial Authority should remain responsible.

Q29 - Does the initial consultation provide sufficient assurance that relevant specialist interests have been consulted? Should any other specific organisations or groups be consulted at this stage?

Q30 - Does the process set out allow for sufficient notice to be given that a lair is being proposed for reuse? Should any particular methods of notification be used in addition to those noted?

Q31 - What can be done to make sure that there are no financial disincentives to opposing to the reuse of a grave?

Q32 - Other than family members, who should be able to object to the proposed reuse of a lair?

Q33 - What considerations should be made to determine whether an objection from a non-family member is legitimate?

Q34 - If the Burial Authority decides not to reuse a lair on the basis of an objection from a non-family member, should that person become liable for the maintenance of the lair? If not, should the Burial Authority remain responsible?

75 If, having undertaken relevant consultations, there are no objections to the reuse of the lair, the Burial Authority may reuse the lair for burial.

76 Where a lair is reused, the Burial Authority will be responsible for the upkeep of the original headstones and memorials that remain in situ, while the new owner of the lair will be responsible for the upkeep of any new headstones and memorials that he or she erects on the lair.

Unused lairs

77 In some cases lairs may have unused space or be unused entirely; for example, where a lair has been purchased in perpetuity but has either not been used to its full capacity or has not been used at all. It is proposed that in such instances, Burial Authorities should be able to take similar steps to enable the use of these lairs. Lairs in this category which have not been used for 25 years could be considered for use, rather than the 75 years required for the reuse of full lairs. Additionally, potential reuse could be considered only where the Burial Authority has taken ownership of the lair because the owner cannot be traced. All other safeguards would remain the same, including the need for the Burial Authority to consult with any relevant religious and faith groups or authorities such as Historic Scotland and to advertise the proposed use for a period of at least 12 months. As with the proposed reuse of lairs, any objection from a surviving relative would prevent the use of an unused or partially full lair by the Burial Authority. The surviving relative would then assume ownership of the lair, including becoming responsible for its maintenance and upkeep.

78 Where a non-family member objects to the potential reuse of a lair which is not full, the Burial Authority should consider whether the objection should prevent the lair being reused. Where it agrees that the lair should not be reused, the Burial Authority will need to consider whether the objector should become responsible for the upkeep of the lair. If not, the Burial Authority would remain responsible for the lair's maintenance.

79 It is important that the potential to become responsible for the upkeep of a lair does not act as a disincentive to someone objecting to its potential reuse.

80 If, having undertaken relevant consultations, there are no objections to the use of an unused or partially full lair, the Burial Authority may reuse the lair for burial. The upkeep of any memorials or headstones associated with a new burial will be the responsible of the new owner of the lair. Any other memorials or headstones associated with previous burials on the lair will be the responsibility of the Burial Authority.

Techniques involved in reusing lairs

81 The Burial and Cremation Review Group recommended the use of the 'dig and deepen' technique where lairs are to be reused. This involves temporarily exhuming the original remains from a lair, placing them into a new container and reburying them in the same lair at a greater depth. A new interment can then take place at a shallower depth within the lair. This is a technique that is used elsewhere, including London (see case study). This process has the advantage of enabling a lair to be reused while allowing the original remains to stay in the same lair.

82 If accepted, it is proposed that the Burial and Cremation (Scotland) Bill would permit the use of 'dig and deepen' in the circumstances described above and would enable Scottish Ministers to make regulations to provide detail on how 'dig and deepen' would be carried out.

Q35 - Do you agree that the 'dig and deepen' method should be used to allow the reuse of full lairs?

Q36 - Are any other techniques available that should be considered?

83 Where lairs are reused, it would ordinarily be expected that original headstones and memorials would be retained in situ, or as close as possible to their original site. One of the Burial and Cremation Review Group's central concerns was to prevent burial sites and individual lairs falling into disrepair, and so in reusing a lair it would be expected that the Burial Authority would seek to make any original headstones or memorials safe where necessary.

84 Headstones may be reused - again, this is something that is common elsewhere, including London (see Case Study), where the back of the headstone is often used, allowing for a new inscription while preserving the original. The reuse of original headstones or monuments could take place only where there are no objections from conservation authorities, the Local Authority or any surviving relatives or other interested parties.

85 Where it is not possible to make headstones and memorials safe, the Burial Authority would be expected to remove them. As with the initial proposal to reuse a lair, the removal of headstones and memorials should be done in consultation with appropriate conservation authorities.

86 The Burial and Cremation Review Group recommended that any reuse of lairs, including moving or removing monuments and headstones, should be recorded to provide a full record of the activity that has taken place, and that such records should be electronic. Such records should be permanent as part of the genealogical, historical and archaeological record of the country. It is proposed that this will be provided for in the proposed Burial and Cremation (Scotland) Act.

Q37 - Do you agree that headstones and memorials may be reused if appropriate?

Q38 - Do you agree that headstones and memorials should be removed from lairs if they cannot be made safe? In this instance, what should happen to headstones and memorials that are removed?

Q39 - Are any other approaches for easing the pressure on burial land suitable for use in Scotland? For example, should above ground mausoleums, similar to those found in Europe, be considered?

87 It is intended that if these proposals are accepted and implemented in legislation, they would have retrospective effect. This would enable Burial Authorities to consider the reuse of lairs as soon as the legislation was implemented. This would be an important way for Burial Authorities to being to tackle the pressure on burial grounds. It would also help to improve the general upkeep of burial grounds, particularly those which are in disrepair.

Q40 - Is a period of 25 years sufficient before the use of a partially-full or unused lair can be considered?

Q41 - Is 12 months long enough to advertise the intended reuse of a full lair or use of a partially-full or unused lair? Where should the Burial Authority's intention be advertised?

Q42 - Where a Burial Authority intends to reuse a lair having undertaken all appropriate consultations, should it be required to make clear to prospective purchasers that the lair is being reused or is part of a lair that is partly full?

Q43 - Do the safeguards described provide sufficient reassurance to ensure that lairs are not reused inappropriately? Are any other safeguards required - for example, should the Burial Authority be required to seek a court order to reuse a lair?

Exclusion of certain categories of grave

88 The only lairs which will be considered for reuse are those which have not been used for 75 or 25 years, depending on the circumstances, and where ownership cannot be traced. For certain categories of lairs - Commonwealth War Graves, for example - these two criteria are unlikely to be met. Nonetheless, it may be worth establishing categories of graves which will not be considered for reuse.

Q44 - Should certain categories of grave - such as Commonwealth War Graves - be automatically excluded from consideration for reuse?

Case study: London

Legislative framework

The shortage of burial land in London has led to the introduction of legislation to address this pressure.^[23] Particular Burial Authorities in London have the power to take ownership of a plot which has not been used for 75 years or more and use that plot for new burials. Legislation allows some Burial Authorities, depending on under which Act the cemetery was opened, to reuse graves by exhuming the human remains in a given plot, reburying them deeper in the original plot and then using that plot for a new burial. It is also possible to carry out a new interment without disturbing the original interment, so long as sufficient burial depth remains.

Strict safeguards exist around the use of these powers. In both cases, the Burial Authority can act only where the plot has been unused for at least 75 years. The Burial Authority must also extinguish the right of interment or burial which exists in relation to a given plot - this can happen generally only where the person who holds the lease for the right to bury in the grave cannot be traced. These powers also allow the Burial Authority to move, remove and reuse any memorials which exist at the plot being considered.

The Burial Authority is required to give notice of its intentions. This must include notice in a local newspaper on two consecutive weeks and public notices posted at every entrance to the cemetery. Public notices must be displayed for at least 6 months. If no objection is lodged the Burial Authority may reuse the grave.

The legislation also prevents the sale of a grave for longer than 100 years, ending the previous practice which allowed graves to be sold in perpetuity.

City of London Cemetery and Crematorium

The City of London Cemetery and Crematorium is one of the largest municipal crematoria in Europe, and uses this legislation to both enable the ongoing availability of burial space and to preserve monuments. Using the original burial records, the Burial Authority identifies graves which are suitable for reuse. The Burial Authority tends to identify graves in groups of 200 (although the 200 graves are not necessarily located next to each other). Notices are then posted in various locations around the cemetery, as well as in local newspapers and on the cemetery website, for six months, during which time anyone with an interest in a given grave can object to its proposed reuse.

Reclaimed graves are made available for new use with a lease of 50 years. Such graves are referred to as Heritage Graves, and help to support the sustainability of the cemetery.^[24] Additionally, the Burial Authority operates a Heritage Programme which encourages the leasing of existing graves where the original rights of burial have been extinguished and the reuse of existing monuments by using the back of the original monument for the new interment.^[25] This enables the Burial Authority to maintain plots which might otherwise have fallen into disrepair, as well as making available additional burial space.

Where it is not possible to reuse the original memorial it may be removed and broken up, with the debris used elsewhere in the cemetery, for example as marble chips in footpaths. Previous preservation work undertaken in the mid-20^th Century means that many of the remaining memorials are less than 65 years old, which in turn means that many of the graves identified for reuse do not have the original memorial in place.

The Burial Authority has developed various local protocols which it applies in identifying graves for potential reuse, including not using any graves where the coffin is intact or where the original remains have not fully decomposed. Similarly, the Burial Authority tries to respond sensitively to any objection that might be raised to a grave being proposed for reuse, and tends to accept an objection without opposition.

Since 2009, around 1000 graves have been reused in this way. The Burial Authority makes various efforts to track the owner of the grave, and in only a small number of cases has there been an objection to the reuse of a particular grave. In such instances, the family of the original owner has taken ownership of the grave and become responsible for its maintenance. Generally, there has been widespread acceptance of the reuse of graves in this way, and the Burial Authority has a well-managed programme of reusing graves, allowing the sensitive sustainability of the cemetery.