Report of the National Committee on Infant Cremation 2014-15

4. New Legislation: Burial and Cremation (Scotland) Bill

Background and General Information

The existing legislative framework for burial and cremation is now very dated. The current primary legislation for burial is the Burial Grounds (Scotland) Act 1855, while for cremation it is the Cremation Act 1902. Much of the detail of the cremation process is set out in the Cremation (Scotland) Regulations 1935. This legislation struggles to meet the needs of 21^st century Scotland, and does not reflect modern attitudes towards the disposal of human remains.

The Burial and Cremation (Scotland) Bill, designed to completely replace the existing legislation, was introduced in the Scottish Parliament on 8 October 2015. It is expected to complete the parliamentary process by 24 March 2016, when the current parliamentary session ends and Parliament is dissolved. The Health and Sport Committee is the lead committee with the Local Government and Regeneration Committee designated as secondary committee; each Committee will consider different aspects of the Bill.

The Bill will provide an updated, comprehensive legislative framework for burial and cremation in Scotland. It takes forward the wide-ranging recommendations made by the Burial and Cremation Review Group in its 2007 report^[2], and will implement those recommendations made by Lord Bonomy which require legislative change.

In summary, the topics covered by the Bill are:

• the management of burial grounds;
• applications for burial, fees and registers;
• the duration of rights over a lair and restoration to use of lairs;
• private (home) burial;
• exhumation;
• cremation, including duties of cremation authorities, applications, fees and registers - pregnancy loss is included in each of these processes;
• who may instruct the disposal of human remains;
• inspectors and inspection, as well as the power for Scottish Ministers to introduce licensing of funeral directors;
• the suspension of burial and cremation legislation in response to public health risks (eg, pandemics);
• methods for disposing of human remains which may be introduced in the future; and
• the ability of Scottish Ministers to issues codes of practice covering various parts of the funeral industry.

Ashes

A key recommendation of the Bonomy Report was to clarify in law the meaning of 'ashes' following cremation, in response to the different interpretations that existed. This lack of clarity had on occasion been suggested to some bereaved parents and families as a reason for non-return of their child's ashes.

The Bill takes the Bonomy definition of 'all that is left in the cremator at the end of the cremation process and following the removal of any metal' and incorporates its meaning, intent and effect into the definition of cremation set out at Bill section 36:

'Meaning of "cremation"

(1) In this Act, "cremation" means the reduction to ashes of human remains by the burning of the remains and the application to the burnt human remains of grinding or other processes.

(2) In this section-

"ashes" does not include metal,

"coffin" includes any type of receptacle,

"human remains" includes, where remains are clothed, in a coffin or with any other thing, the clothing, coffin or other thing.'

As well as defining 'ashes', the Bill also introduces measures that will ensure clarity about what is to be done with ashes that are recovered. A person who applies for a cremation will need to specify what should be done with the ashes - this will ensure that there is no ambiguity about what will be done with ashes, and will provide a legal statement of the applicant's wishes. The Bill will also allow for a range of other Bonomy recommendations that will improve procedures for the cremation of babies and infants, and which will additionally make improvements to cremation procedures generally.