Report of the Infant Cremation Commission

Annex D - Joint Opinion of Counsel

JOINT OPINION of COUNSEL for the INFANT CREMATION COMMISSION and THE MORTONHALL INVESTIGATION

in relation to

THE INTERPRETATION OF REGULATION 17 OF THE CREMATION (SCOTLAND) REGULATIONS 1935

INTRODUCTION

1. 1. We have been asked to provide an Opinion on the meaning of "ashes" in Regulation 17 of the Cremation (Scotland) Regulations 1935 in the case of the cremation of babies and infants. We have been asked to consider the application of Regulation 17 in relation to three distinct situations:

(a) A child born alive who dies early in life ("neonatal infant").

(b) A still-born child (defined in section 56 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 as "a child which has issued forth from its mother after the twenty‑fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life").

(c) A non-viable foetus aborted or miscarried at less than 24 weeks gestation.

2. We have been asked to provide this Opinion against the background that there is controversy about whether, at the end of the process of cremation of non-viable foetuses, still-born children and very young infants, what is recovered from the cremator contains any of the remains of the baby. We note that the Commission has encountered at least three possible scenarios following such a cremation:

(a) There is nothing left at all.

(b) It is possible to identify skeletal remains.

(c) Although a substance remains following the cremation, it is impossible to say for sure whether what is left in the cremator contains any tangible element of the baby. The substance could include elements of the cremated body, ash from the coffin and ash from items such as soft toys which were cremated with the baby, or a combination of these.

NEONATAL INFANTS

3. Cremation of neonatal infants in Scotland is governed by the 1935 Regulations. Regulation 17, so far as material for present purposes, provides:

"After the cremation of the remains of a deceased person the ashes shall be given into the charge of the person who applied for the cremation if he so desires…"

The term "ashes" is also used in the section of the Cremation Act 1902 under which the 1935 Regulations were made (section 7). This provides that "The Secretary of State shall make regulations … directing the disposition or interment of the ashes…". Section 13 of the 1902 Act also mentions ashes stating that certain provisions in the Cemeteries Clauses Act 1847 "shall apply to the disposition or interment of the ashes of a cremated body, as if it were the burial of a body."

4. The term "ashes" is not defined in the Act or the Regulations; nor have we been able to find any case in which the definition of the term in these Regulations has been considered. In our view there are two possible interpretations. The first ("the narrow interpretation") is that it concerns the remains of the body itself and does not extend to the remains of any associated item such as the coffin or any item cremated with the body. The second ("the broad interpretation") is that it encompasses all that is raked from the cremator following the cremation of human remains (other than items which could not, on any view, be regarded as "ashes" such as the remains of the coffin's metal fixtures) regardless of whether that substance is comprised of the remains of the body itself. In our view, the broad interpretation should be preferred.

5. The aim of statutory interpretation is to ascertain and give effect to the true meaning of what the legislator has said in the provision to be construed. The modern understanding of this exercise is to give effect to the legislator's purpose: R. (on the application of Quintavalle) v Human Fertilisation and Embryology Authority [2003] 2 AC 687 per Lord Bingham of Cornhill and Lord Steyn. The statutory purpose and the general scheme by which it is to be put into effect are of central importance: Bloomsbury International Ltd v Sea Fish Industry Authority [2011] 1 WLR 1546, para. 10 per Lord Mance JSC. While an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute (R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 2 AC 349 per Lord Nicholls of Birkenhead), the words used fall to be read in the context of the statutory scheme and its overall purpose: Bloomsbury International Ltd, loc. Cit. Generally speaking, a practical and workable construction, which avoids absurdity is to be preferred: cp Shannon Realties Ltd v Ville de St Michel [1924] AC 185 per Lord Shaw; Hatzl v XL Insurance Co Ltd [2009] EWCA Civ 223.

6. The general purpose of the Regulations is to provide a practical scheme for the regulation of crematoria. The particular purpose of Regulation 17, in that context, is to direct the disposition or interment of the "ashes" which follow "the burning of any human remains": Cremation Act 1902, section 7. Specifically, Regulation 17 directs that "[a]fter the cremation of the remains of a deceased person" the ashes shall be disposed of in one of the ways described in the Regulation. The legislator may be taken to have understood that, in our culture, human remains may well be cremated in a container - typically a coffin. The legislator may accordingly be taken to have understood that what remains after cremation may include residue both of the human body and of the container in which it was cremated. We imagine that it would be impossible both as a matter of practicality - and, perhaps indeed in theory - to separate out those parts of the residue which are derived from the body of the deceased and those which derive from the container. An interpretation which, even as a matter of principle, implied that a distinction fell to be drawn between these two substances would, it seems to us, be divorced from reality. If that is correct, then it equally, in our view, must be correct that the residue which remains after the cremation of the human remains in question should be characterised as "ashes" for the purposes of Regulation 17 even if, in the particular circumstances, it is possible that no part of the residue has been, as a matter of fact, derived from the body. The practical point is that the Cremation Authority could not know whether or not that was, in fact, the case. Against that background, it seems to us that the word "ashes", as it is used in Regulation 17, should be interpreted as referring to the residue (other than things, such as metal coffin fixtures, which on no sensible view would fall to be regarded as "ashes") left after the cremation of the remains a deceased person without seeking to distinguish between residue which derives from the remains of the deceased and residue which derives from the container or other things cremated with the body.

7. We recognise that the relevant dictionary definition of "ashes" is "that which remains of a human body after cremation…" (Oxford English Dictionary, second edition). This definition might be taken to support the narrow interpretation. We also acknowledge that section 13 of the 1902 Act speaks of the "ashes of a cremated body", a phrase which might be taken to imply that the "ashes" are what remains of a "cremated body". But it goes without saying that the "ashes" to which Regulation 17 refers are residue left after the cremation of human remains. Unless a deceased person has been cremated there will be no "ashes" for the purposes of Regulation 17. It does not, in our view, follow - in a case where the deceased person's body has been cremated in a container such as a coffin - that the term "ashes" should not or could not be construed to cover, compendiously, such residue as is left after that cremation, or, likewise, that the term "ashes of the deceased", which is used in Regulation 18, does not cover the ashes which remain after the cremation of the deceased. We recognise also that breach of Regulation 17 would constitute a criminal offence (Cremation Act 1902, section 8), and that this consideration might be taken to support a narrow construction of the Regulation: see Craies on Legislation, tenth edition at para 19.1.14. But in our view, the over-riding point in the context of this case is that the narrow construction would be practically unworkable. Indeed, it might deprive the criminal sanction of any practical effect if it were to be necessary for the prosecutor to prove that the residue left after the cremation of a human body in a coffin included residue from the body and not (or not only) residue from the coffin - and that would, itself, be a consideration in favour of the interpretation which we have preferred.

STILL-BORN CHILDREN

8. Regulation 16 of the 1935 Regulations makes specific provision for the cremation of the remains of a still-born child. There is, in our view, serious doubt as to whether or not Regulation 17 applies to ashes which may be left after the cremation of the remains of a still-born child. The question is whether or not a "still-born child" is a "deceased person" for the purposes of Regulation 17; and the answer to this question is far from clear. It seems to us, on balance, that a "still-born child" does fall to be regarded as a "deceased person" for the purposes of Regulation 17. It would, though, be highly desirable that the Regulations should be amended to clarify this eminently debatable point.

9. At common law a still-born child is not a person: Bankton i.2.8. For this reason, such a child which has shown no sign of life after being expelled from its mother would not ordinarily fall, in law, to be regarded as having "deceased" (although it will be obvious that morally and theologically a different view might be held). Consistently with this analysis, the system of registration of births, still-births, deaths and marriages in Scotland makes specific provision for the registration of still-births (Registration of Births, Deaths and Marriages (Scotland) Act 1965, section 21): these are not registered as deaths.

10. Against that background, the 1935 Regulations could be regarded as containing separate provisions in respect of the cremation of the remains of "deceased persons" and (in Regulation 16) for the cremation of a "still-born child". Regulation 6 cannot apply to a still-born child (because the certificate required is a certificate of death). Many of the other Regulations relate to a "deceased" or to a person who "has died", terms which would not, on this view, refer to a still-born child. Consistently with this analysis, Regulation 2 of The Cremation (England and Wales) Regulations 2008, SI 2008, No. 2841 (which are made under the 1902 Act and replace Regulations made in 1930) expressly distinguishes between a "deceased person" and a "still-born child" in the definition of "body parts" (and, since these are Regulations made under the same primary statute as the 1935 Regulations, this understanding of the terms could be of some relevance to the interpretation of the latter: see Bloomsbury International Ltd, loc. cit).

11. The key provision which points in the other direction, in our view, is Regulation 18 of the 1935 Regulations. Regulation 18 requires every Cremation Authority to keep a register of all cremations in the specified form. The last column in Form G is headed "How ashes were disposed of". Regulation 18 requires this column to be completed "as soon as the ashes of the deceased have been handed to the relatives or otherwise disposed of." It seems to us that Regulation 18 requires the inclusion in the register of "all" cremations - including cremation of the remains of a still-born child. We take this view even though certain of the columns would require adaptation for still-births. It follows:-

(a) that for the purposes of Regulation 18 at least, a still-born child falls to be characterized as a "deceased";

(b) that the Cremation Authority is obliged to record how it disposed of the ashes of the still-born child; and

(c) that it is obliged to do so as soon as the ashes have been handed to the relatives or otherwise disposed of.

12. We recognise immediately that it does not necessarily follow from this analysis of Regulation 18 that Regulation 17 applies to still-born children. It could quite plausibly be argued that Regulation 18 simply imposes a record-keeping requirement and that the Regulations contain no statutory requirements as regards the disposal of the ashes of still-born children. But it does seem to us that the better construction - if the ashes of a still-born child can be the "ashes of the deceased" for the purposes of Regulation 18 - is to read Regulation 17 as covering all those cremations which fall to be recorded in Form G.

13. There are features of Regulation 17 which would not or might not apply in the case of still-born children:

(a) The provision in Regulation 17 for intimation to the "executor of the deceased" would, for example, plainly not apply in the case of a still-born child.

(b) Regulation 16 does not - by contrast with the Regulations applicable in other cases - contain any provision for applications to be made to cremate the remains of a still-born child - and so, in the case of a still-born child, there may be no-one who has applied for the cremation (and so no one to whom the ashes would require to be given under Regulation 17). On the other hand, Form F - which does, by reference to the footnote, fall to be completed by the Medical Referee in the case of a still-born child as in other cases - proceeds on the basis that an application will have been made.

14. Even if no-one has applied for the cremation of the still-born child (and so there is no one to whom the ashes would require to be given under Regulation 17), Regulation 17 would still have practical content in the case of a still-born child. In the absence of any arrangement of the sort described in Regulation 17, the Cremation Authority would be required by that Regulation decently to inter the ashes in a burial ground or in land adjoining the crematorium reserved for the burial of ashes (or to scatter the ashes thereon).

NON-VIABLE FOETUSES

15. There is no specific provision in the legislation for foetal remains. If the pregnancy has not progressed to 24 weeks gestation, the provisions in the 1935 Regulations, including Regulation 17, have no application.