Practical aspects and limitations on reusing graves in London
Background
The lack of burial space in London was identified in Planning for Burial Space in London, a report published in August 1997 by the London Planning Advisory Committee, (LPAC). In 2001, the Eighth Report of the Select Committee on Environment, Transport and Regional Affairs argued for the introduction of legislation to enable re-use of graves, and concluded: “… we trust that, now Ministerial minds have been focused on the subject of cemetery services, this situation will begin to change.”
Apparently not. Reference was made to the 1997 work in the Government’s 2004 consultation paper, Burial Law and Policy in the 21st Century, and this was followed by further estimates of the remaining burial space and calls for parliamentary action. These are reviewed in the House of Commons Library Standard Note Reuse of graves, last updated on 15 May 2014.
In a subsequent adjournment debate, the then Minister of Justice, Simon Hughes, expressed his wish “to be in a position to move forward from that holding position [of his various predecessors, i.e. keeping the subject under review]”, [5 Sep 2014 Vol 585 (33) Col 632]. Nevertheless, he noted [Col 630]:
“A number of those who are calling for something to be done have asked that access to the re-use scheme in the [London Local Authorities Act 2007] that applies in Greater London be extended to apply to the rest of England and Wales. There must clearly be reasons why London councils are not generally making more use of these powers, and before the Government consider legislation to extend the scheme more widely, we need to make sure that we understand the reasons why they have not been used significantly in London.”
Re-use of graves in London
An indication of the issues involved is given in the document Technical Guidance on the Re-use and Reclamation of graves in London Local Authority Cemeteries[1], (“the LEDNET Guidance”). Published in October 2013 with a view to assisting local authorities on these issues. It suggests that the lack of action by London boroughs “may in part be due to the fact that, for many …, some of the issues surrounding re-use are seen as problematic”. In the adjournment debate, these were identified [Col 630] as “the difficulties involved in establishing who owns the monuments, and similar issues, and partly the administrative complexity of identifying grave ownership”.Significantly, the Minister further commented:
“Although the City of London … reused just under 900 graves in the four years up to 2013, it did this in nearly every case using the powers not in the 2007 Act but those under ecclesiastical law where, on Christian consecrated land, re-use of graves is permitted if the Church authorities issue … a faculty.”
Southwark Council is now at an advanced stage its strategy for the development of its cemeteries, many of which fall within the faculty jurisdiction.
LEDNET Guidance
As its name implies, the LEDNET document is primarily technical in nature and importantly, it provides a summary of the various legislative regimes and the terminology associated with the re-use of graves; the latter includes a number of “terms of art” and whilst these reflect aspects of the legislative regimes, they are not legal definitions per se.
Re-use involves interment in graves previously used for burials, at depths where it may be necessary to disturb human remains. This is permitted in those private graves [i.e. those for which the burial right has been sold in perpetuity or for a period defined by the Burial Authority at the time of sale] for which legislation provides a means whereby these rights may be cancelled. Re-use in private graves involves the so-called “lift and deepen” approach in which existing remains are exhumed and reinterred in the same grave at greater depth.
Re-use is also possible in public graves [also referred to as common, un-purchased, or pauper’s graves] within consecrated land, subject to approval through the faculty jurisdiction. The Guidance indicates that this form of re-use involves the so called “lift and re-inter” approach in which remains are exhumed and then re-interred in another consecrated grave.
Reclamation is the use of the unused burial space within a grave, (i.e. above the most recent interment) and involves the cancellation of existing, private burial rights; often this only involves as single additional burial in view of the limited space remaining. The term is also applied to: burial in private plots where no interment has been made; and sometimes in relation to public graves where there is “sufficient depth to conduct a burial without disturbance of existing remains, (usually because of an accumulation of topsoil that may have occurred historically).
Secular Legislation As noted earlier, the re-use of graves is addressed in legislation that is specific to Greater London. Section 74 London Local Authorities Act 2007 empowers a burial authority to disturb or authorise the disturbance of human remains interred in the grave for the purpose of increasing the space for interments in the grave: where it has extinguished a right of burial in a grave space under s6, City of London (Various Powers) Act 1969; or a right of interment in respect of a grave under s9, Greater London (General Powers) Act 1976. In addition to specifying the procedure involved, section 74 (4 to 8), important aspects of the 2007 Act include:
- the requirement for any human remains that are disturbed to be reburied in the same grave, section 74(3);
- retention of the jurisdiction of the consistory court of the diocese in relation to the use of consecrated land and the requirement of a faculty for exhumation &c, section 74( 9 and 10), i.e. its jurisdiction remains after exhumation/re-use of the grave, c.f. In re Radcliffe Infirmary Burial Ground [2011]; but
- the disapplication of the requirement for a licence from the Secretary of State under s25 Burial Act 1857, section 74(11).
However, these provisions do not apply to every cemetery in Greater London:
- Not all municipal cemeteries were established under the Burial Acts; some were established before the Burial Act 1852, and some were laid out by local authorities under the less prescriptive Public Health (Interment) Act 1879.
- Some are subject to specific enactments: for example, some of the cemeteries owned by the borough of Southwark were excluded from the 1976 Act since they were subject to similar provisions within the Greater London Council (General Provisions) Act 1975.
- Private cemeteries are not Burial Authorities under s214 Local Government Act 1972 and do not have the power to extinguish burial rights unless another Private Act is secured;
- For the City of London, provisions similar to those in the 2007 Act are included in the City of London (Various Powers) Act 1969.
The legislative scheme is therefore not uniform across the Greater London boroughs, and the LEDNET Guidance advises each authority to check the particular legal circumstances and/or the application of the legal framework to their own cemetery or cemeteries.
Faculty Jurisdiction In contrast to the prescriptive provisions within statutory legislation, the application of the faculty jurisdiction to the re-use of graves is more nuanced and the summary within the Guidance will benefit from further explanation; this will be addressed in a future post. In Re Blagdon Cemetery [2002] Fam 299, although the Court of Arches considered the issues associated with exhumation, it did not address the re-use of graves per se. The Chancellor of Southwark’s Guidance on Churchyards and Memorials commences: “[s]ave where burial rights are granted subject to a particular period of years, there should be an expectation that grave spaces will in due course be reused, and this is necessary to economise on land-use at a time when grave space is a diminishing resource”. This is essentially a policy document, rather than a statement of the law in this area, although it is likely to receive consideration by the consistory court when its reviews the petition of Southwark Council, (t.b.a.). The campaigning organization “Save Southwark Woods” has indicated that as of 4 January 2016, the Diocese had been made aware of “more than 700 individual objections … to the first phase [of the Southwark plan]” [2].
Other legislation In addition to the above, there is a range of planning and environmental legislation that must be taken into consideration. This is beyond the scope of this post, but is reviewed in section 3.9 of the LEDNET document.
Comment
As recently as 22 December 2015, Caroline Dinenage, Parliamentary Under-Secretary at the Ministry of Justice, stated: “the re-use of burial space is a sensitive issue and any potential changes in this area, including any legislation, would require careful consideration. We have been actively engaging with stakeholders and will consider whether there is a need for government to take action in due course,” [Written Question 20166]. This seems to return to the position from which Simon Hughes was seeking to progress, supra.
However, it is clear from the LEDNET Guidance that the legislative situation in Greater London is not as straightforward as it might first seem, and further consideration of the Church’s position will be given when the Southwark consistory court hears the Council’s forthcoming petition.
On the broader issues of burial &c, ministers will be aware of the Burial and Cremation (Scotland) Bill presently under consideration by the Scottish Parliament, which following its consultation, seeks to address many of the issues that are problematic to both administrations.
David Pocklington
[1] The Cemeteries, Crematoria and Burial Provisions (CCBP) Sub-Group of the London Environmental Directors Network (LEDNET) Technical Guidance on the Re-use and Reclamation of graves in London Local Authority Cemeteries [2013].
[2] For which the closing date for objections to the planning application is15 March 2016.
