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

Section 5 - Exhumation

89. Under Scots law^[12] all human remains have 'the right of sepulchre'^[13] and to violate buried human remains deliberately is a criminal act under common law. However, there are a number of valid reasons why someone may wish to apply for human remains to be exhumed.

90. Exhumation is generally understood to be the process of intentionally removing human remains from their place of burial. The process in Scotland currently involves an application to the Sheriff Court for a warrant to disinter which is costly and complex.

91. The 2016 Act provides that Scottish Ministers can make regulations for exhumation. The intention is to remove exhumation from the court process in some circumstances, with the option for either Inspectors or such other persons, as may be specified by regulations, to decide on applications for exhumation. Where possible, the aim is to simplify the administrative process, reduce time and courts costs.

Categories of exhumation

92. Exhumation can broadly be split into 7 categories. Exhumation from:

A. a burial ground: at the request of relatives of the deceased

B. a burial ground: at the request of the burial authority

C. a burial ground: for the purpose of restoration and reuse of lairs

D. outwith a burial ground: known private burial (home burial)

E. outwith a burial ground: discovered human remains (recent)

F. outwith a burial ground: discovered human remains (archaeological)

G. outwith a burial ground: known or likely human remains on land to be developed

93. Taking into account the views of the BRWG, it is proposed that Inspectors of Burial, Cremation and Funeral Directors are an appropriate authority to make decisions on exhumation applications for A, B and D above. Inspectors will have greater knowledge and experience of burial, and therefore exhumation, than Scottish Ministers or Scottish Government officials.

94. However, Inspectors are unlikely to have the capacity, authority or knowledge and expertise to authorise exhumations of discovered human remains outwith burial grounds – whether recent or archaeological (categories E, F and G), and it is therefore proposed that existing processes remain in place in these situations. Category C is dealt with in the regulations covering restoration and reuse.

95. Each of the categories of exhumation will now be described in more detail with proposals outlined.

A. Exhumation from a burial ground: at the request of relatives of the deceased

96. It is proposed that applications for exhumations of human remains from burial grounds may be made by the deceased's nearest relatives to cremate, repatriate or re-inter the deceased in a different location. The deceased's nearest relatives will be set out in a hierarchy, similar to the hierarchy in sections 65 of the 2016 Act (in relation to burial and cremation arrangements on death). The relative who is making the application for the exhumation will be 'the applicant'.

97. The applicant may also be the lair right-holder, i.e. the person who has the exclusive right of burial in the lair^[14]. However, if the applicant is not the lair right-holder, it is proposed that the applicant will be required to obtain the written consent of the lair right-holder as part of the application process.

98. If the applicant is a relative of the deceased, listed in the intended hierarchy, but is not the nearest relative, i.e. there are other relatives higher in the hierarchy or of equal rank, then it is proposed that they will need to obtain the written consent from the nearest surviving relative(s) of the deceased including relatives of the same degree of kinship, such as their siblings. This is in addition to the written consent of the lair right-holder.

99. The intention is that only adult relatives (in this context, meaning a person who is 16 years of age or over) will be eligible to apply for the exhumation or required to give consent. The exception will be for parents under the age of 16 who will be able to apply for exhumation of their child.

100. Modern families take many different and often complex forms. It is intended that a relationship of the half-blood is to be treated as a relationship of the whole blood and the stepchild of an adult is to be treated as the child of the adult. Where a spouse is permanently separated or has been deserted, that spouse will be omitted from the hierarchy.

101. If the lair right-holder and/or nearest relative(s) cannot be traced then evidence of the applicant's attempts to consult with them will be considered by the Inspector when making a decision.

102. Two examples are set out below which aim to outline different exhumation scenarios and relevant consents.

103. The deceased is buried in a burial ground. They had a surviving spouse and two surviving adult children (no other surviving relatives). Child A is the lair right-holder and applicant for the exhumation. As per the intended hierarchy based on section 65 of the 2016 Act, the spouse is the nearest relative. The applicant obtains the signed consent of the spouse. Child B is a relative of the same degree of kinship as the applicant (sibling) so the applicant obtains the signed consent of Child B. Electronic signatures will be acceptable.

Question 30 – Where an application for exhumation from a burial ground is made by a relative of the deceased who is also the lair right-holder but is not the nearest relative, do you think the applicant should be required to obtain written consent from the nearest relative(s) and any relatives of the deceased who have the same degree of kinship as the applicant (e.g. the applicants siblings)?

• Yes
• No
• Not sure

Please give a reason for your answer.

104. The deceased 'Parent A' was the parent of four children and is buried in a burial ground. As per the intended hierarchy, based on section 65 of the 2016 Act the children are the deceased's nearest relatives. Child A wishes to exhume Parent A to move the remains to another burial ground. Child B died after Parent A and was the lair right-holder but this right transferred to Grandchild E on Child B's death. Grandchild E is now the lair right-holder. Child A has completed the application form and obtained written consent from Grandchild E (lair right-holder) and Child C (sibling). Child A has made various attempts to contact estranged Child D and submits evidence of doing so. It is proposed that in these circumstances, that an Inspector will take the evidence presented with the application into consideration when deciding whether to authorise the exhumation.

Question 31 – Where an application for exhumation is made by a nearest relative of the deceased but they are not the lair right-holder, should that relative be required to obtain the written consent of the lair right-holder and any relatives of the deceased who have the same degree of kinship as the applicant (e.g. the applicant's siblings)?

• Yes
• No
• Not sure

Please give a reason for your answer.

B. Exhumation from a burial ground: at the request of the burial authority

105. Occasionally exhumations are required by burial authorities out of necessity, for example, due to operational concerns such as a falling wall or flooding which must be remedied. Currently, these applications are made to the Sheriff Court. It is proposed that regulations under section 27(1) of the 2016 Act will take this process out of the Sheriff Court and enable such applications to be made to Inspectors.

106. It is proposed that burial authorities will be required to obtain the written consent from the lair right-holder prior to submitting the exhumation application to an Inspector. As good practice, the burial authority should also attempt to sensitively discuss the situation with other nearest relatives of the deceased, where known to allow them to raise any issues, for example, faith-based concerns. Consultation with nearest relatives beyond the lair right-holder will not, however, be a requirement of the regulations, as the burial authority may not know who the nearest relatives are. It is proposed that if the lair right-holder and/or nearest relatives object to the exhumation, the Inspector will take this into account when making a decision and balance this against the necessity of the exhumation.

Question 32 - Where an application for exhumation from a burial ground is made by a burial authority, from whom should written consent be obtained?

• Lair right-holder
• Nearest relatives
• Other

Please give a reason for your answer.

Urgent exhumation

107. Occasionally there are instances where an exhumation will be required urgently to prevent delay to a funeral. This could be because a previous coffin in a lair was buried at a shallow depth and must be exhumed and reburied at a lower level to accommodate the new burial. This is a particular issue with previous infant burials.

108. When a lair is opened for a new burial there is a deal of urgency required in order to obtain permission to exhume a baby's coffin to allow the next burial to proceed. Some burial authorities are understood to have negotiated a fast-tracked petitioning system with the Sheriff Court to facilitate a warrant to disinter and re-inter babies' coffins found during lair preparations, thereby preventing delay to the funeral.

109. The intention is that exhumation regulations will provide for a fast-track procedure in these circumstances. An application can be marked as urgent for an Inspector's decision. Although the issue is mostly relevant to previous infant burials in the lair, we think it would be beneficial to extend the fast-track procedure to the discovery of shallow buried ashes and adult burials to prevent delays to funerals. Consent from the lair-right holder will be required. In contrast, where a family knows the lair cannot accommodate any further burials but wish to restore a lair for use, this will not fall under these exhumation regulations but instead under section 40 of the 2016 Act on reuse of lairs.

Question 33 – Please share any views you have on the proposed fast-tracked exhumation procedures?

Feasibility report

110. With the exception of urgent exhumations, above, it is proposed that all applications (by relatives and burial authorities) will require to be accompanied by a feasibility report, conducted in advance of the application by the relevant burial authority. Where the applicant for exhumation is a relative of the deceased, they will need to request the feasibility report from the relevant burial authority.

111. A feasibility report is important to check the condition of the coffin to determine if it is fit to exhume, preserving the dignity of the deceased, and to report on the presence of any other deceased in the lair. In addition, it is proposed that the feasibility study should include consideration of the following factors:

• Health and safety risk assessment, including public health risk, in consultation with the local authority Environmental Health Department
• Archaeological assessment (if applicable). It is suggested that where remains are 100+ years old, archaeological assessment should always be required as part of a burial authority's feasibility study. Where remains are less than 100 years old, consultation with an archaeologist may still be required, for example, where:
  • burials are less than 100 years old but may disturb other historic remains if exhumed
  • designated assets, such as scheduled monuments, are present.^[15]
• Consultation with the Commonwealth War Graves Commission ('CWGC') (if applicable)
  • Any exhumation from a war grave must be done in consultation with the CWGC, regardless of whether the CWGC is the lair right-holder. This is because the CWGC can own and maintain headstones without owning the rights to the lair itself. All relevant consultation with the CWGC should be documented in the feasibility report.

Question 34 – Thinking about the proposed feasibility report factors set out above, which do you think should be included in a feasibility study for exhumation?

• A check of the condition of the coffin to determine feasibility to exhume
• Health and Safety Risk Assessment
• Archaeological assessment (by local authority archaeologist or HES)
• Consultation with the CWGC
• Other
• None of the above

Please provide any views on anything else you think should or should not be included in a feasibility report.

Time limit to carry out exhumation

112. If authorisation for exhumation from a burial ground is granted it is considered appropriate for a time limit to be attached in which the exhumation must take place. This is important so that any feasibility report is recent, registers can be updated appropriately and to ensure plans are in place for the reburial or cremation of the deceased.

Question 35 – Do you think there should be a time limit for carrying out an exhumation once authorisation has been given?

• Yes
• No
• Not sure

Question 36 - If you answered yes to the previous question, what do you think the time-limit should be?

• 3 months
• 6 months
• 1 year
• 2 years
• Other

Please give a reason for your answer and provide any other comments.

C. Exhumation from a burial ground: for the purpose of restoration and reuse of lairs

113. Where a burial authority seeks to carry out exhumations for the purpose of lair restoration for reuse (set out in more detail later in this consultation) it is proposed that the regulations for exhumation will not apply and an application to an Inspector will not be required.

114. This is because the process for lair restoration and the power for burial authorities to exhume in these circumstances is already set out in the 2016 Act. Sections 32 to 44 of the 2016 Act contains strict safeguards which burial authorities must adhere to before any exhumation can take place. An additional application to an inspector for authorisation for exhumation in this case, is considered to be overly burdensome. Moreover, it is likely that, if a burial authority decides to undertake a programme of lair restoration, then a number of exhumations will be required at the same time, for example to bring a full burial ground back into use. Individual applications would be resource intensive and impractical, especially when all other safeguards have already been met.

D. Exhumation from outside a burial ground: known private burial (home burial)

115. Although perhaps rare, there may be occasions where an exhumation of a known burial on private land, such as a small family burial ground, is requested. A burial may be 'known', for example, if a headstone marks the burial site or if the presence of the burial was identified during the sale of the property.

116. It is intended that an application for exhumation of a known burial from private land will be required to be made to Inspectors. It is proposed that such an application would be made in a similar way as the procedure for an exhumation from a burial ground. Each application would also require to be accompanied by a feasibility report conducted by the local authority, and again the exhumation decision would be made by an Inspector based on the individual circumstances.

Question 37 – Should requests for exhumation of known burials on private land be made to an Inspector of Burial, Cremation and Funeral Directors?

• Yes
• No
• Not sure

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

117. In relation to eligibility to apply for the exhumation of a private burial, it is proposed that this may be:

(a) at the request of relatives of the deceased (as per the intended hierarchy based on section 65 of the 2016 Act). The applicant may also be the landowner, but if not, consent from the landowner will be required. Or;

(b) requested by subsequent landowners with no relationship to the deceased, for example, if they are planning a garden renovation.

118. However, (b) raises a number of difficult questions, including whether notifying the deceased's relatives should be required prior to exhumation. The landowner may not know who they are or have no contact details. It also raises questions over what arrangements should be made for the exhumed remains; who is responsible for the cost of exhumation, reburial or cremation. How do we ensure that those remains are treated with dignity and respect? We welcome your views.

Question 38 – Where the person applying for exhumation from private land is not related to the deceased (e.g. a new landowner) what arrangements should be made for the exhumed remains?

E. Exhumation from outside a burial ground: discovered human remains (recent)

119. Discovered human remains or 'chance finds' are reported to Police Scotland^[16] and the exhumation of the remains will generally follow the police investigation. Police Scotland have an agreed procedure for managing chance discoveries of human remains set out on their intranet. The police may consult with local authority archaeologists to determine the age of the remains. Where remains are obviously recent, police will investigate in accordance with their standard procedure.

120. Section 27(4) of the 2016 Act makes it clear that the exhumation regulations cannot make provision which affects any procedure relating to the exhumation of human remains in connection with:

• the investigation of a crime that has been, or is suspected of having been, committed,
• criminal proceedings,
• investigations of deaths under the authority of the Lord Advocate, or
• inquiries under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

F. Exhumation from outside a burial ground: discovered human remains (archaeological)

121. As mentioned above, Police Scotland have an agreed procedure for managing chance discoveries and this includes the discovery of archaeological remains. Where bones are more than 100 years old, the Procurator Fiscal will make a decision on whether to investigate further or hand over the matter to the local authority archaeology service and HES.

122. HES have an operational policy paper on The Treatment of Human Remains in Archaeology. It states the requirement to report findings to legal authorities prior to any further disturbance of the remains.

123. Inspectors are unlikely to have the knowledge and expertise to authorise exhumations of discovered archaeological human remains. It is therefore proposed that existing processes remain in place in these situations.

G. Exhumation from outside a burial ground: known or likely human remains on land to be developed

124. Where building development is underway near to a burial ground, there is a chance that human remains will be uncovered and this can be considered as part of the planning process. A planning consent may have conditions attached, such as requiring the developer to pay for any required exhumations and reinterments.

125. In is understood that, currently, developers sometimes apply to the Sheriff Court for a blanket exhumation order. If bodies are found, the developers will then speak to the local authority about arrangements for reinterment. It is intended that Inspectors will not have a role here. Existing procedures should remain in place.

Question 39 – Please share any views you have on exhumation of discovered human remains from outside a burial ground.

Register of Exhumation (in a burial ground)

126. It is proposed that regulations will be made under section 30(4) of the 2016 Act to make provision in relation to the exhumation registers that burial authorities will, in accordance with section 30(1) of the 2016 Act, be required to prepare and maintain for their burial grounds. It is intended that the regulations will prescribe the following minimum information to be recorded in the register:

• Burial number/ reference (from burial register)
• Type of interment (full body, ashes etc)
• Full name of deceased
• Date of birth
• Date of death
• The date the exhumation was authorised by the Inspector of Burial, Cremation and Funeral Directors
• Date of exhumation
• Detail of what happened to the remains following exhumation (e.g. cremation, reinterment, repatriation)
• Location in burial ground (pre-exhumation)
• Funeral director (if used)

Question 40 - What is your view on the proposed information to be collected by each burial authority in the Register of Exhumation relating to the exhumation of human remains carried out in a burial ground for which it is the burial authority?

• It looks right
• It does not look right
• Some of this is unnecessary information
• There is some information missing

Please give a reason for your answer.

Register of Exhumation (private burial register)

127. It is proposed that regulations will be made under section 30(4) of the 2016 Act to make provision in relation to the exhumation registers that each local authority will, in accordance with section 30(2) of the 2016 Act, be required to prepare and maintain in relation to private burials authorised by that local authority under section 22(3) of the 2016 Act. It is intended that the regulations will prescribe the following minimum information to be recorded by each local authority in their register:

• Private burial/ reference number (if the burial is recorded in the Register of Private Burial)
• Full name of deceased (if known)
• Date of birth (if known)
• Date of death (if known)
• Type of interment (full body, ashes, body part etc)
• The date the exhumation was authorised by the Inspector of Burial, Cremation and Funeral Directors
• Date of exhumation
• Detail of what happened to the remains following exhumation (e.g. cremation, reinterment, repatriation)
• Location of burial site (pre-exhumation)
• Funeral director (if used)

Question 41 - What is your view on the proposed information to be collected by each local authority in the Register of Exhumation relating to the exhumation of human remains authorised for private burial by that local authority?

• It looks right
• It does not look right
• Some of this is unnecessary information
• There is some information missing

Please give a reason for your answer.