Management of burial grounds, application for burial, exhumation, private burial and restoration of lairs: regulation in Scotland

Introduction

1. The Burial and Cremation (Scotland) Act 2016 ('the 2016 Act') received Royal Assent in April 2016. It provides a modern, comprehensive legislative framework for burial and cremation in Scotland. Many of the 2016 Act's provisions are rooted in recommendations made by the Infant Cremation Commission, the National Cremation Investigation and the Burial and Cremation Review Group.

2. The 2016 Act gives Scottish Ministers the power to, amongst other things, establish an inspection regime for burial authorities, cremation authorities and funeral directors and to set up a licensing scheme for funeral director businesses. Key to this is the development of regulations and codes of practice which will be fundamental in ensuring minimum standards of care of the deceased. To promote compliance with the legal requirements within these regulations and codes, Scottish Ministers can appoint inspectors under section 89 of the 2016 Act as Inspectors of Burial, Cremation and Funeral Directors ('Inspectors').

3. Scottish Ministers first appointed the Inspector of Crematoria in March 2015.^[1] The Inspector was appointed under the Cremation (Scotland) Regulations 1935, which at that time was the most up-to-date legislation relating to cremation. In April 2019, following the implementation of the new 2016 Act, the Inspector of Crematoria's remit was widened to encompass the whole cremation process and was renamed 'Inspector of Cremation'.

4. The first Inspector of Funeral Directors was appointed in 2017 by Scottish Ministers (by virtue of section 89(1) of the 2016 Act) to review the funeral sector in Scotland, progressing recommendations of the National Cremation Investigation and fulfilling the recommendations the Infant Cremation Commission.

5. In October 2020, the Inspector of Crematoria's remit was widened to encompass the entire funeral sector (subsuming the remit of the Inspector of Funeral Directors), and an additional Inspector was appointed. From that time, there has been appointed a Senior Inspector of Burial, Cremation and Funeral Directors and an Inspector of Burial, Cremation and Funeral Directors.

6. Some parts of the 2016 Act have already been implemented. Notably, in 2019, Part 2 on cremation was commenced, following which the Cremation (Scotland) Regulations 2019 were made. These regulations took forward recommendations from the Infant Cremation Commission and National Cremation Investigation, to implement improvements to the cremation process and the handling of ashes in Scotland.

7. The purpose of this consultation is to seek views on the implementation of regulations for burial in Scotland.

8. This consultation is being published as part of a collection of consultations relating to the content of various sets of regulations that will be made under sections of the 2016 Act which have not yet been implemented. They are:

• Inspection regulations
• Licensing regulations (for funeral directors)
• Alkaline Hydrolysis (an alternative to burial or cremation)

9. All consultations in this collection will be available on the collection page on the Scottish Government Citizen Space website.

10. You are welcome to comment on all parts of this consultation or select only the parts and questions most relevant to you.

Burial regulations

11. The Scottish Government is committed to modernising the law on burial in Scotland. Prior to the Burial and Cremation (Scotland) Act 2016, the legislation around burial had not been substantially revised or amended since the nineteenth century. The Burial Grounds (Scotland) Act 1855 applied only to burial grounds run by local authorities, although it is understood that many in the private sector complied with the legislation voluntarily.

12. The Burial and Cremation Review Group ('the Review Group'), established by the Scottish Government in 2005, published its report and recommendations in October 2007 ('the 2007 Report'). The Review Group recommended the repeal of all existing primary and secondary legislation in relation to burial and cremation applicable in Scotland, to be replaced by a single Act with powers to make appropriate subordinate legislation covering burial.

13. The report of the Review Group led to the 2016 Act which repealed the 1855 Act and replaced it with a comprehensive legislative framework for burial in Scotland. It also allows for the introduction of new processes, such as regulations for private burial, exhumation and the restoration of lairs to support the sustainability of burial. The 2016 Act creates consistency by requiring all burial authorities (defined in section 2 of the 2016 Act as "the person having responsibility for the management of the burial ground", which may include local authorities, private companies, community groups and faith groups) to comply with the 2016 Act and related regulations.

14. The Burial Regulations Working Group ('BRWG') established by the Scottish Government in 2016, made a number of initial recommendations relating to the management of burial grounds. After the pandemic the BRWG was re-formed in December 2021 with an updated and expanded membership list including representatives from:

• local authority burial authorities,
• private burial authorities,
• funeral director businesses,
• trade associations,
• bereavement organisations,
• memorial specialists,
• historic environment and archaeological specialists,
• Inspectors of Burial, Cremation and Funeral Directors, and
• Scottish Government.

15. Minutes of the BRWG meetings are available at: Burial Regulations Working Group - gov.scot (www.gov.scot).

16. This consultation paper sets out a range of proposals and approaches for the regulation of burial in Scotland which have been informed by the work and recommendations of the BRWG. We invite views from the funeral sector and the wider public on the following areas:

• Commencement of part 1 of the 2016 Act
• Regulations for the management of burial grounds
• Regulations for burial application and register
• Regulations for private burial
• Regulations for exhumation
• Regulations for the restoration of lairs.