A NEW law to permit the reuse of all old graves in England and Wales, and to reopen Victorian burial grounds for reuse, could help to handle the national shortage of burial space, the Law Commission has proposed.
The shortage is widespread, but worse in some urban areas, it acknowledges.
The Law Commission of England and Wales, the independent body established by statute to maintain the law under review and to make recommendations to government on law reform, has published a consultation paper that makes provisional proposals to reform the law on burial and cremation, parts of that are greater than 170 years old.
There are differing approaches to burial in line with religion and culture.
The Church of England and the Roman Catholic Church require that ashes be buried or strewn on consecrated ground. Islam prohibits cremation. Orthodox Judaism, but not the Liberal or Reform traditions, also prohibits cremation. Some Caribbean and African communities within the UK strongly prefer burial. Hinduism and Sikhism require cremation.
Burial law has, due to this fact, evolved through the years right into a patchwork that applies to different burial grounds, depending on who operates them. Some of the laws date back to the nineteenth century, and are deemed to be unfit for the twenty first century.
Burial was once the only responsibility of the Church of England, but is now divided between the C of E, local authorities, and personal burial grounds. Gaps within the law mean that there aren’t any rules for personal cemeteries, for instance, on the minimum depth at which bodies must be buried.
A 2007 Ministry of Justice survey found that local-authority cemeteries had, on average, 30 years’ burial space left. When each burial plot in a cemetery was used just once, over the course of time the cemetery ceased to serve its original purpose, and risked falling into disrepair and becoming a site for anti-social behaviour, the Commission says.
Grave reuse has been permitted in C of E churchyards since time immemorial, although a college is required if reuse involves moving memorials or stays.
The Law Commission doesn’t propose any changes to grave reuse in relation to the C of E. It does, nevertheless, imagine the reuse of other graves to be an answer to the shortage of grave space in England and Wales.
Currently, just some burial grounds are permitted to reuse graves: in London, local-authority cemeteries, and three other cemeteries (including Highgate Cemetery) which have obtained their very own Acts of Parliament permitting it.
The Commission’s proposals would enable any burial ground to reuse graves, but only after public consultation, and only with government approval of the burial-ground operator’s plans.
There would even be safeguards for individual graves. Currently, graves may be considered for reuse provided that the previous burial took place greater than 75 years ago. The Commission is consulting on whether any recent law should use the identical time period, or a unique one, akin to 100 years. If the family of the deceased person objects, no reuse can occur for an additional 25 years.
The Law Commission also addresses the problem of closed churchyards and uncollected ashes.
Numerous C of E churchyards and other burial grounds were closed by law within the Victorian era. The Commission proposes that these be reopened to be used, allowing people to be buried closer to home, or in an area that holds a special meaning.
Funeral directors are estimated to carry a whole lot of hundreds of ashes which have not been collected by families after cremation, and which the funeral directors haven’t any legal right to bury or scatter. The Commission’s proposals would enable ashes to be returned to crematoria, which could use their existing powers to scatter or bury these once reasonable attempts had been made to contact the family of the deceased person. The proposal would apply retrospectively to currently unclaimed ashes, in addition to to those who weren’t collected in the longer term.
The siting of crematoria can be addressed. Currently, crematoria need to be constructed a minimum of 200 yards away from residential homes, and 50 yards from public highways. This was originally due to concerns about emissions, but this will likely now not be the case with modern technology. The consultation asks whether this rule should remain.
Currently, the law also permits people to bury bodies on their very own land; but there isn’t any technique of ensuring that information concerning the location is passed on to a recent owner. The Commission proposes that to not achieve this can be a criminal offence.
The Commissioner for Property, Family and Trust Law, Professor Nick Hopkins, said that the proposals provided “a major opportunity to reform burial and cremation law and secure burial space for future generations”. This needed to be done “sensitively and with wider public support”.
The Parliamentary Under-Secretary of State on the Ministry of Justice, Alex Davies-Jones, said that the Government was supportive of the Law Commission’s work, and encouraged the general public to answer the consultation paper.
The Law Commission is in search of, specifically, the views of interested members of the general public: those that operate burial grounds or crematoria, those that use them, funeral directors, and people who are involved within the palliative-care sector.
The consultation runs for 14 weeks, and can close on 9 January. Final recommendations are to be made to the Government at the tip of that yr.
