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

Section 6 - Restoration of lairs

128. One of the key issues considered by the Review Group (Report and Recommendations, 2007) was the increasing pressure on available land for burial in Scotland. The 2007 Report notes concerns around available space for burial – both in terms of available lairs within existing burial grounds and available land for future burial grounds. Although the issue is acute in larger cities it is also an issue in some rural areas. The Review Group's recommendation in the 2007 Report for the restoration of unused and partially used lairs is now set out in sections 32 – 44 of the 2016 Act.

129. Once these sections of the 2016 Act are brought into force, a lair in a burial ground can be considered for restoration if it appears to have been abandoned, the relevant period of time has passed and the burial authority is of the opinion that the lair is suitable for restoration. The relevant period of time is:

• where the lair contains human remains, 100 years from the day on which the last burial took place, or
• where no burials have taken place in the lair, 50 years from the day on which the right of burial in the lair was last sold

130. Additional strict safeguards are included in the 2016 Act to ensure lairs are only considered for restoration once the burial authority has notified the lair right-holder and given an opportunity for objection.

131. In some instances the lair right-holder may request that the lair is restored. Section 40 allows for this but the burial authority is still required to follow the consultation procedure set out in section 32 relating to archaeological and Commonwealth War Graves Commission (CWGC) interests.

Notification

132. Where a burial authority proposes to restore a lair and is aware of the name and address of the lair right-holder or is able, after some enquiry, to establish who the lair right-holder is, then they must give notice in accordance with section 33(3). The lair right-holder will have a period of time to consent or object in writing before any work to restore the lair can take place. The proposed time period is no less than 6 months and no greater than 12 months from the date the notice is issued.

Question 42 – Do you think that no less than 6 months from the date the notice is issued is an appropriate length of time for the lair right-holder to consent or object to the restoration of a lair?

• Yes
• No – too long
• No – too short
• Not sure

If you answered 'no', please suggest a minimum time period.

Question 43 – Do you think that no longer than 12 months from the date the notice is issued is an appropriate length of time for the lair right-holder to consent or object to the restoration of a lair?

• Yes
• No – too long
• No – too short
• Not sure

If you answered 'no', please suggest a maximum time period.

133. Where the lair right-holder cannot be found, it is intended that the burial authority will be required to give notice in an alternative manner. This may include, for example, publication of the notice in a local newspaper and displaying notices in visible positions at the entrances to the burial ground.

Question 44 – Where the burial authority cannot identify the lair right-holder, please provide your views on how a burial authority may publicise the intention to restore the lair.

Register of Restored Lairs

134. Each burial authority will prepare and maintain a Register of Restored Lairs. It is intended that the regulations will prescribe the following minimum information to be recorded in the register:

• Location of the lair in the burial ground
• The lair right-holder's name and contact details (if known)
• The name of the person who requested the restoration (and whether they represent a burial authority or are the lair right-holder)
• Details of any deceased in the lair (name, date of death, date of burial)
• Burial number(s)/ reference(s) from burial register
• Date of any initial excavation, opening of tomb or structure under s32(2) of the 2016 Act
• Date of any objections received under s32(6) of the 2016 Act from archaeologists, CWGC or any other person the burial authority thinks appropriate
• Date notice of intention to restore lair was given to the lair right-holder (if known) under s33 of the 2016 Act
• If the lair right-holder is not known, the steps (and dates) taken to publicise the intention to restore the lair
• The date any objections are received and from whom, under s35 of the 2016 Act
• The date the right in the lair was extinguished under s36(4)
• The date any (a) excavation (b) opening or moving of tomb or structure or (c) exhumation of human remains took place under s37(3) of the 2016 Act
• The date any exhumed remains were reburied in the lair

Question 45 - What is your view on the proposed information to be collected in the Register of Restored Lairs?

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

Please give a reason for your answer.

Headstones

135. Where a burial authority has to remove a headstone from a lair to exhume human remains in order for the lair to be restored, the headstone must be returned to its place on the lair as soon as the remains have been reburied. There may be occasions where it is not possible to return a headstone to its original location. This might be because doing so would create a potential risk to those visiting the burial ground, such as due to deterioration of the headstone.

Question 46 – If the lair is to be used for a further burial and it is not possible to return a headstone to its original position do you have any views on how it should be preserved or retained?