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

Section 2 - Management of burial grounds

20. Burial authorities are responsible for all operational matters relating to management of their burial grounds. The Review Group, in the 2007 Report, highlighted the lack of regulations governing the management of burial grounds in Scotland and had particular concerns around burial grounds which had fallen into disrepair. It is intended that these regulations will create a broad and consistent framework for burial ground management in Scotland.

21. In England and Wales the Local Authorities' Cemetery Order 1977 (LACO) sets the general parameters for the operation of public burial grounds. The Scottish Government is aware of LACO but intends that the regulations in Scotland will be broader than LACO – applying to both local authority and non-local authority burial authorities.

Management Plans

22. Section 6 of the 2016 Act gives Scottish Ministers the power to make regulations for, or in connection with, the management, regulation and control of a burial ground by a burial authority. It is intended that regulations will make provision in respect of the effective management of the wide range of burial grounds that exist in Scotland.

23. Burial grounds can be active (accepting new burials), inactive (not accepting new burials) or historical (generally understood to be where the last coffin burial took place more than 100 years ago and no more coffin burials are anticipated). They can be located, for example, on steep cliffs, remote beaches, hilly terrain or city centres and can be managed by one of a number of different parties such as local authorities, commercial companies, charitable and faith organisations or not-for-profit community volunteers.

24. Our proposal is to require each burial authority in Scotland to prepare and maintain at least one management plan which will apply to all the burial grounds for which the burial authority has responsibility. A management plan is intended to be a type of operating manual which offers a transparent view of who manages burial grounds in Scotland, the different types of burial grounds and how those burial grounds are managed and operated.

25. Each burial authority's management plan is to provide an overview of how their burial grounds are to be managed. The regulations will prescribe the minimum content required of the management plan, but each burial authority will have the option to add additional information. We propose that the minimum information to be included will be:

• a list of the names, addresses and business hours of each burial ground that the burial authority manages and to which the management plan applies.
• whether each burial ground is active, inactive or historical in nature.
• the procedures for –
  • carrying out of burials
  • dealing with an unexpected rise in the number of burials
  • operation and servicing of all equipment used in the burial process or to maintain the burial ground.
  • procedures for keeping burial grounds well maintained.
  • procedures for keeping headstones and other memorials in safe order and repair such as any memorial inspection programme.
• contingency arrangements for any unexpected disruption to, or loss of, service (e.g. flooding, unsafe headstones, police incidents within burial grounds).
• an overview of staff training (e.g. what courses, qualifications, CPD etc. are available to staff) and how training is recorded.

Question 2 – Please provide any views you have on the proposed minimum content of the management plan, including whether any suggested content should be added to, or removed from, the plan.

26. It is proposed that burial authorities will be required to make their management plan available to view by Inspectors of Burial, Cremation and Funeral Directors ("the Inspectors") and by members of the public. Burial authorities may choose to publish their management plan online for ease of accessibility. The management plan could be a useful reference document for members of the public if they have a particular interest or a complaint and wish to know more about how that burial authority handles such issues. Inspectors may also wish to view management plans to ensure they contain the required minimum information, to make an assessment on whether relevant burial grounds are being managed in accordance with the plan and to suggest improvements, if needed.

Question 3 – Who do you think should be able to inspect or view a management plan on request?

• Inspectors
• Scottish Government
• Members of the public
• Another burial authority
• Other parties
• No one – internal document only

Please give reasons for your answer.

27. It is proposed that burial authorities will be required to prepare a management plan within a set time period of these regulations coming into force. Thereafter, it is intended that burial authorities will be required to review their management plan annually and keep it updated as required. For comparison, when the Cremation (Scotland) Regulations came into force in 2019, cremation authorities had 6 months to prepare a cremation management plan. Cremation management plans must be reviewed every 12 months. We are seeking your views on what you think would be a reasonable time period to prepare a burial management plan and your views on the frequency of ongoing review.

Question 4 – What timeframe should burial authorities be given to put a management plan in place after the regulations come into force?

• 3 months
• 6 months
• 12 months
• Other
• Don't know

Please give reasons for your answer.

Question 5 – Do you think that burial authorities should be required to review the management plan annually?

• Yes - it sounds right
• No - it's too often
• No - it's not often enough
• Not sure

Please give reasons for your answer.

Maintenance, repair, embellishment, layout, access and conditions

28. The objective of the burial management regulations is to support burial authorities in the management of their burial grounds and to provide clarity around what actions burial authorities may take in certain circumstances.

29. In order for burial authorities to maintain their burial grounds, they will be granted powers to carry out any activities they deem necessary and appropriate for the proper management of their burial grounds, including powers to:

• carry out general maintenance and upkeep of the burial ground and all buildings and structures, walls, fences and other such erections (headstones and memorials are discussed separately).
• enclose, lay-out and embellish the burial ground as the burial authority considers necessary or appropriate.
• take steps to improve and maintain public access to, and within, the burial ground.
• carry out inspections, maintenance and repairs on headstones and memorials necessary to make them safe, subject to the conditions outlined below.
• impose such restrictions and conditions as the burial authority thinks necessary or appropriate in relation to the erection of a memorial, building or other structure.

30. It is understood that burial authorities already undertake many, if not all, of these tasks on a regular basis, however, consultation responses to the Burial and Cremation Bill (page 13) and engagement with burial authorities have indicated a preference for powers in relation to burial ground management to be set out in regulations to provide a legal basis for activity.

Question 6 – What is your view on the proposed list of powers (set out in the bullet points above) to be granted to burial authorities to enable them to manage and maintain their burial grounds to a safe standard?

• It looks right
• It does not look right
• Some of these powers are unnecessary
• Some powers are missing
• Not sure

Please give reasons for your answer and provide any further comment.

Maintenance and repair of headstones and memorials

31. The person who owns a headstone or memorial (usually the lair right-holder) is responsible for its upkeep. However, many headstones have been abandoned over time, meaning that there is no known or identifiable lair right-holder.

32. Burial authorities have a duty of care and statutory health and safety obligations to staff working in their burial grounds and to members of the public who are visiting under The Health and Safety at Work etc. Act 1974 (as amended) (HSWA1974) and the Occupier's Liability (Scotland) Act 1960. It is understood that many burial authorities already have in place an ongoing memorial inspection programme to identify and rectify potential dangers within their burial grounds. In 2019, the Scottish Government published burial ground memorial safety guidance which supports local authorities' own maintenance and repair procedures for making memorials safe and providing a safe environment in burial grounds. Although the guidance is targeted at local authorities, private burial authorities can also use the guidance to assist their ongoing management of burial grounds under their control. It includes advice and suggestions around:

• Memorial inspection, such as – visual inspection, physical inspection and re-inspection
• Recording and communicating
• Methods of making safe
• Future proofing

33. Burial authorities have indicated a preference for powers to maintain lairs and address unsafe, and damaged memorials to be set out in regulations (rather than guidance) to provide a stronger legal framework. The intention is that regulations will enable burial authorities to:

• carry out memorial inspections
• take steps to make headstones and memorials safe, including altering the position of any headstone, memorial or other surface fitting on a lair.
• levelling the surface of a lair to that of the adjoining ground
• removing or altering the positions of any kerbs or railings on a lair
• removing or repositioning any flowering or other plants

34. However, this will be subject to the conditions set out below.

Existing legislative requirements

35. These regulations do not negate burial authorities' obligations under existing legislation such as the Ancient Monuments and Archaeological Areas Act 1979 in relation to scheduled monuments. It is a criminal offence to carry out unauthorised works, or to allow unauthorised works to be carried out, on a scheduled monument.

Lair right-holder notification

36. It is recognised that failure to suitably advise lair right-holders of corrective action to a lair or memorial may easily cause further distress. In order to mitigate this it is proposed that regulations will require burial authorities to notify lair right-holders of the need to take steps to maintain lairs and to make headstones safe.

37. Where lair right-holders are 'known' (or at least some form of contact details are available) and the danger is not imminent (discussed further below), it is intended that regulations will require notification to be given to the lair right-holder in advance of any lair maintenance or corrective action to the headstone or memorial. It is proposed that notice should be sent by post to the last known home address of the lair right-holder and/or by email, depending on the contact details held.

38. For headstones and memorials, the notice should:

• explain that the headstone has failed an inspection
• request that the lair right-holder instruct repairs
• specify a deadline for the lair right-holder to take corrective action by
• set out what the burial authority will do if action is not taken

39. If the burial authority receives no response by the specified date, or the lair right-holder indicates that they will not instruct the repairs, then the burial authority can take steps to make the memorial safe, or to repair it, if they choose.

40. For other lair maintenance (e.g. levelling surface, altering position of plants, railings etc.) the notice should:

• notify the lair right-holder what lair maintenance tasks are required
• specify the date(s) on which the maintenance tasks will be undertaken by the burial authority.

Question 7 – where a lair right-holder is 'known' (or at least some form of contact details are held), and the danger is not imminent, do you think that regulations should require a burial authority to notify the lair right-holder prior to taking corrective action to a lair, headstone or memorial?

• Yes
• No
• Not sure

Please give reasons for your answer.

Question 8 – If you answered 'yes' to question 7, how long should the lair right-holder be given to carry out necessary repairs to a headstone or memorial before a burial authority takes corrective action to make the memorial safe?

• 1 month
• 2 months
• 3 months
• 6 months
• Other

Please give reasons for your answer.

41. For some lairs, it is recognised that notification will be more difficult. It is therefore proposed that, where burial authorities do not have up to date contact details for lair right-holders, they will be able to meet the intended notification requirements by publicising their intention to ensure a headstone or other memorial is made safe. This could be done in a variety of different ways, for example, via social media, local press, public noticeboards etc.

Question 9 – Where lair right-holders are unknown (contact details are outdated), please provide views on the most appropriate way to publicise the intention to carry out inspections and potential corrective action to make headstones and memorials safe.

Question 10 – In relation to Question 9, how long should burial authorities be required to publicise their intentions, prior to taking corrective action?

• 1 month
• 2 months
• 3 months
• 6 months
• Other
• Don't know

Please explain you reason for choosing this timeframe.

Memorials requiring urgent attention

42. If a headstone or memorial requires urgent action to make it safe, i.e. it presents an immediate danger to visitors or staff who work in the burial ground, it is proposed that regulations will enable burial authorities to do so prior to formal notification and consultation with lair right-holders.

Question 11 – Please provide any views you have in relation to headstones or other memorials requiring urgent attention.

Methods of making safe

43. Whilst it is intended that regulations will grant powers to burial authorities to take action to make memorials safe, it is not proposed that the regulations will specify how. This will be at the discretion of each burial authority who will be expected to have regard to existing guidance and any future burial code of practice issued by the Scottish Government.

44. We do not intend to require burial authorities to repair, conserve and restore headstones and memorials, beyond making them safe. Although any repair, conservation or restoration would have a positive impact on burial grounds in general, restoration would incur a significant financial outlay for burial authorities which they may not be able to viably fund. These concerns were raised in the consultation and financial memorandum to the Burial and Cremation Bill in 2015.

45. We recognise that the preservation of cultural and heritage aspects of burial grounds is important and that is why considerations in relation to historical, scheduled^[4] and listed buildings and monuments are set out in the burial ground memorial safety guidance at paragraphs 87-102.

46. The abandonment and subsequent disrepair of headstones is expected to improve over time once sections 12, 14 and 19 of the 2016 Act are commenced. It is anticipated that the changes to the duration of the right of burial and the right to erect a headstone will lead to more accurate records of lair right-holders, held by burial authorities, and that in turn will lead to greater accountability for maintenance.

Staff training

47. It is not intended that regulations will specify the education and training requirements for burial authority staff, except a requirement that the burial authority ensure that all staff are adequately trained in the use of any equipment they operate when performing their duties.

48. Whilst every member of staff, including managers, should be trained to the appropriate standard for their role and undertake Continuing Professional Development (CPD) and, whilst it is desirable to require staff to have successfully completed training, it is proposed that this will be set out in guidance or a future burial code of practice, rather than in regulation.

49. It is intended to provide in regulations that each burial authority is required to maintain an up-to-date record of all training undertaken by staff. This will allow Inspectors to form a view as to levels of staff training and whether a burial authority is in compliance with their duty to ensure that all staff are adequately trained in the use of any equipment they operate.

Question 12 – Please provide any comments you have on the proposed training requirements and the keeping of training records for burial authority staff.

Faith designation

50. It is understood that some burial authorities already designate parts of their burial grounds for use by particular faiths or religious bodies. It is proposed that regulations will set out the legal basis for doing so. This is intended to be a power for burial authorities, not a duty, as the requirements of local communities will differ. Burial authorities are encouraged to engage with local faith communities to determine whether designated areas are required.

Question 13 – Please share your views on the designation of parts of a burial ground for different faiths.