Management of burial grounds, application for burial, exhumation, private burial and restoration of lairs - regulation: consultation analysis

Executive Summary

This report presents the analysis of the Scottish Government’s public consultation on “Management of burial grounds, application for burial, exhumation, private burial and restoration of lairs: regulation in Scotland” under part 1 of the Burial and Cremation (Scotland) Act 2016 (‘the 2016 Act’), which ran online between 25 August and 17 November 2023

The consultation was comprised of 47 consultation questions and eight impact assessment questions, and collected information in both survey and open-ended comment format. The analysis of responses was conducted in late 2023/early 2024. The consultation received 59 responses (37 from organisations and 22 from individuals).

This consultation was published as part of a collection of four consultations relating to the content of various sets of regulations that are intended to be made under sections of the 2016 Act which have not yet been implemented. They related to:

• Inspection regulations
• Alkaline hydrolysis (an alternative to burial or cremation)
• Licensing regulations for funeral directors

Main Findings

Overall, there was strong support for the proposals for the intended burial regulations. Respondents welcomed efforts to ensure that burial legislation is fit for purpose both now and in the long term. Key points from the consultation responses are as follows:

Section 1 – Commencement of part 1 of the 2016 Act

• Respondents indicated a preference for a 12 month timeframe to prepare for the changes to the duration of right of burial to enable sufficient time for organisational preparation and public communications.

Section 2 – Management of burial grounds

• Respondents showed support for the introduction of a burial management plan and the majority of respondents shared the view that it should be an open, transparent and publicly available document. Whilst many respondents simply agreed with the proposed content of the management plan, others provided valuable suggestions for inclusion or removal.
• The majority of respondents agreed with the proposed list of powers to be granted to burial authorities to enable them to manage and maintain their burial grounds to a safe standard. However, respondents did highlight additional areas for consideration – such as: powers to manage public access, powers of conservation and powers to manage removal of ‘unauthorised items’
• Respondents supported the proposal to require burial authorities to contact lair right holders (where known) prior to taking any corrective action to a lair, headstone or other memorial. Reasons centred on the need to provide families with an opportunity to carry out the work themselves, to avoid potential upset and for cost recovery. However, several respondents countered this by highlighting issues of risk, difficulty in contacting lair right-holders and the administrative burden.

Section 3 – Burial Application and Register

• The majority of respondents were supportive of the proposed information to be collected in the burial application forms and the burial register and welcomed the standardisation of the process. Several, however, suggested changes to the contents. Others expressed reservations around the number of application forms proposed and digital limitations.
• There was clear support for applications for burial of ashes to be accompanied by a cremation certificate or an extract copy of the cremation register entry.

Section 4 – Private burial

• The majority of respondents agreed with the proposed list of third party agencies with whom an applicant may be required to consult as part of a private burial application. This was countered by a minority of respondents who thought the list was too long and the process would be time-consuming.
• Respondents showed overall support for the information to be included in the private burial application form and register, with several respondents providing additional suggestions for inclusion or removal.
• There was a mixed response on the Scottish Government’s proposal not to permit a formal application to be made for private burial in advance of a person’s death, with those in agreement supporting the guidance-only approach and those in opposition raising concerns around the unreasonable amount of work required for bereaved relatives.
• The vast majority of respondents agreed that private burials should be decided on a case by case basis.
• A few respondents voiced broader concerns with the assessment of private burial and these comments will be considered as the regulations are developed.

Section 5 – Exhumation

• The majority of respondents agreed that the lair right-holder and the nearest relatives of the deceased should be required to give consent for exhumation.
• The proposal for a fast-tracked exhumation procedure was welcomed in order to ensure that burials were not unnecessarily delayed and bereaved people impacted by this. Several respondents shared the view that repositioning ashes within the lair should be exempt from the exhumation procedure altogether.
• Respondents were in agreement with the proposed list of factors to be considered by a feasibility study for exhumation with some respondents suggesting additional reports that could be included where appropriate (e.g. impact on adjacent structures and memorials)
• The vast majority agreed that Inspectors of Burial, Cremation and Funeral Directors should make decisions on exhumation applications for known private burials.
• Various comments were made in relation to exhumation of discovered human remains from outside a burial ground and these will be carefully considered in the drafting of the regulations.
• There was majority agreement with the proposed content of the exhumation registers, with some respondents providing further suggestions.

Section 6 – Restoration of lairs

• The majority of respondents agreed that lair right-holders should be given 12 months to consent or object in writing before any work to restore the lair for reuse can take place.
• The majority of respondents were content with the information to be collected in the Register of Restored Lairs, noting that the list was comprehensive. Some additional suggestions were made.

Next Steps

Following the analysis of the consultation responses, the Scottish Government will consider the proposals in developing the draft burial regulations. The results of the analysis will also be considered in relation to the responses received to the other three public consultations which were published in parallel to the burial consultation in 2023.