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

Exhumation

89 The Burial and Cremation Review Group considered only practice and procedure relating to exhumations which do not involve the Procurator Fiscal or the police. The Group took the view that the current procedure, which requires an application to be made to the Sheriff by either the nearest relative or the local authority, is unnecessarily bureaucratic, lengthy and costly. Based on practice elsewhere, including in England, the Group recommended a new streamlined process.

90 The proposed process would require the family to complete an application for exhumation, detailing the reason for exhumation, information about the deceased and other information about the location of the grave and the site for interment. The relevant local authority would be required to confirm these details. The Group recommended that the completed application would then be submitted to the Scottish Government for authority to exhume.

91 Since the Scottish Government would have no particular expertise or knowledge of the reason for exhumation beyond what was set out in the application form, it is instead proposed that the submitted application should be sent for authorisation to the inspector that is discussed at paragraphs 178-181. This should allow for more expert scrutiny of the application.

92 While this process should allow applications to be dealt with quickly, the process should contain a facility to enable certain sensitive applications to be dealt with even more speedily, for example where the remains of a child required to be exhumed. If these proposals are accepted, the Burial and Cremation (Scotland) Bill would give Scottish Ministers power to make regulations for the exhumation process. A full consultation on this process would take place when the regulation-making power was exercised.

Exhumation for reuse of full lairs

93 A different process is proposed for exhumation for the purpose of reusing full lairs. In this instance, the Burial and Cremation Review Group recommended that Burial Authorities should be permitted to carry out exhumations without the need to seek authority from the Scottish Government (or the inspector, as per the alternative proposal at paragraph 91). Instead, Burial Authorities would have the authority to carry out such exhumations on the completion of the consultative process described at paragraphs 69-75 as long as no objections had been lodged. It is considered that the statutory notice and consultation process would provide sufficient safeguards to ensure that Burial Authorities can carry out exhumations for this purpose only when appropriate to do so. This process would also enable large numbers of exhumations where it would be impractical or resource intensive to require an individual authorisation for each exhumation - for example, where a full or closed cemetery (or a section of a cemetery) was being brought back into use by reusing full lairs.

94 If this proposal is accepted, the Burial and Cremation (Scotland) Bill would give Scottish Ministers the power to make regulations for this purpose, including specifying which Burial Authority officials would have the power to authorise exhumations for the purpose of reusing full lairs.

Exhumation of cremated remains

95 There is no legal framework covering the exhumation of cremated remains (ie, those which have been placed in a container for interment). The Group recommended that this should be addressed, following a similar procedure for that proposed for the exhumation of buried remains whereby an application would be made to the Scottish Government, although, in line with the alternative proposal for the authorisation of exhumations, this could be done by the inspector.

Q45 - Do you agree with the proposals to streamline the process for authorising exhumations, including an additionally streamlined process for particular categories of exhumation?

Q46 - Do you agree with the proposal to provide an alternative process where the purpose of the exhumation is to allow the reuse of a full lair, including that the Burial Authority need not seek specific authorisation once it has carried out specified notifications that it intends to reuse the grave?

Q47 - Do you agree that authorisation for exhumations should be carried out by the inspector, rather than the Scottish Government?

Q48 - Do you agree with the proposed approach for the exhumation of cremated remains?

Exhumation for archaeological purposes

96 There is some uncertainty about who may authorise an exhumation for archaeological purposes, including what responsibilities lie with the Burial Authority. There is a lack of legal clarity about the legal powers to carry out such an exhumation. While the need to undertake an exhumation for this purpose will be relatively uncommon, it is proposed that the Burial and Cremation (Scotland) Bill should set out a clear process for such circumstances.

Q49 - Do you agree that the Bill should set out the process for applying for and authorising an exhumation for archaeological purposes? Should any particular issues be taken into account or conditions applied?