“Management of Burial grounds” – Scottish Govt Consultation Response

The Scottish Government is running a consultation seeking views on the future management of Scotland’s graveyards, in particular on new rules about to be brought in on exhumation and the reuse of historic burial lairs and plots that have not had a new burial in 100 years.

In our Trust’s response we have shared our concerns about the unintended consequences of these new powers that could potentially provide wide-ranging permission for historic graveyards to be cleared of many of their incredible and unique memorials, monuments and mausolea.

Our full submission to this consultation can be found below. The consultation closes on 17th November 2023, you may be able to email further comments to burialandcremation@gov.scot for a short period thereafter, though these may not be counted in the official responses.

Management of burial grounds, application for burial, exhumation, private burial and restoration of lairs: regulation in Scotland – Scottish Government Consultation

1. What do you think is an appropriate timeframe for burial authorities and the general public to prepare for the changes to the sale of right of burial?

 We believe many people will be very surprised to learn that “in perpetuity” rights to lairs are to be extinguished and replaced with a single generation of 25 years. Many families will wish to visit graves long after this time period has expired.

If this course of action is to be taken, one year’s notice along with a concerted and meaningful publicity campaign, in print and digital media, publicising this significant change will provide reasonable notice. 

2. Please provide any views you have on the proposed minimum content of the management plan, including whether any suggested content should be added to, or removed from, the plan.

All of the above would be very welcome, but it would also be useful to provide families and visitors with information on how to locate specific lairs and grave memorials. Ideally this should be made available online and free to access.

The research involved may be beyond the means of some burial authorities, particularly if they have not kept and maintained maps and registers of burials, in which case links should be provided to their local council archives which may have this information. Archives often contain relevant graveyard information collated and collected by others over the years.

This would undoubtedly prove beneficial in ensuring the long-term interest in upkeep of monuments by lair-owners and improve contact between burial authorities and lair owners. It would also greatly improve accessibility for those visitors who may be unable to walk around several acres of cemetery until a lair is identified.

3. Who do you think should be able to inspect or view a management plan on request?

Active and historic burial grounds are public property and maintained at public expense, all associated records must be made fully accessible to the public.

4. What timeframe should burial authorities be given to put a management plan in place after the regulations come into force?

 Twelve months should be sufficient time for all burial authorities to formalise and bring into line with national best practice their existing local management plans for their cemeteries.

5. Do you think that burial authorities should be required to review the management plan annually?

That feels too burdensome and could lead to resource problems. Every five years would be a more appropriate review period, giving sufficient time between reviews to ascertain what works and what needs to be changed. However, there will also need to be a process for interim review where local authorities deem it necessary.

6. What is your view on 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?

The intention of this part of the act is “to provide clarity around what actions burial authorities may take in certain circumstances”. Sadly, the extent of the powers being devolved to local authorities here is far too vague and open to wide interpretation. Granting a local authority “…the powers to carry out any activities they deem necessary and appropriate…” is exactly the sort of loose framing that has led to a wide variety of significant problems in urban and rural planning over the past century. Many localities now greatly regret the loss treasured parts of their historic landscape due to misuse of vaguely-worded legislation like this.

All powers must be rigidly defined. “General maintenance”, “upkeep” and “embellish” are all highly subjective terms. One team could decide the best way to “maintain” a site requires radical and complete clearance of all upstanding boundary walls or other unprotected structures on site, another may decide to “embellish” a historic graveyard with entirely unsuitable materials that assist their work to the detriment of the whole site.

It should be noted that most graveyards, especially long-standing and historic sites, form a significant and hugely important part of our nation’s cultural landscape and built heritage. In addition to the obvious comfort they can provide families during times of personal grief, they also contribute positive impacts to community wellbeing as welcoming greenspaces, the wider economy as visitor attractions and much more besides. These sites need to be better managed going forward with these wider benefits in mind.

The vast majority of Scottish graveyards currently do not enjoy sufficient protection from planning or other legal departments to prevent well-meant, but entirely inappropriate interventions taking place. Undefined devolved powers in this regard will lead to further detrimental activities in these important sites of sensitive, cultural and historical significance.

7. Where a lair right-holder is ‘known’ (or at least some form of contact details are held), and the danger is not imminent, do you think that regulations should require a burial authority to notify the lair right-holder prior to taking corrective action to a lair, headstone or memorial? 

Yes. The current understanding is that the lair is owned in perpetuity and the grave marker above is a visible reminder of the relatives beneath. Too many families have been unnecessarily upset or traumatised when returning to visit their loved ones to find the grave marker has been laid flat by the local authorities.

All efforts should be made to make contact with the last person that that the lair was known to have been owned by. If nothing is heard within two months further efforts should be made to contact them utilising local newspapers, local community networks and digital means (website and social media). A single letter or multiple letters posted to a decades-old contact address is simply not enough.

8. If you answered ‘yes’ to question 7, how long should the lair right-holder be given to carry out necessary repairs to a headstone or memorial before a burial authority takes corrective action to make the memorial safe? 

Six months. During which time the headstone or memorial should be cordoned off using Heras fencing with clear and durable warning signs affixed alongside a public notice of intention to lay the memorial flat with contact details for the burial authority for the owner to make their own arrangements for the memorial.

9. Where lair right-holders are unknown (contact details are outdated), please provide views on the most appropriate way to publicise the intention to carry out inspections and potential corrective action to make headstones and memorials safe.

Given the scale of the problem a regular PR campaign could be arranged with local and national media directing members of the public to a clear section of the local authority’s website where notices to “make safe” memorials in particular graveyards would be published. A single small notice buried on page 43 of the local newspaper is not enough.

Concerted use of local networks, such as area partnerships and community councils should be utilised. Local authorities currently cascade large quantities of information relating to their work to a local level in this way, such activities should also be shared with communities.

Vastly improved use of digital means of notification is necessary. Once a dedicated space on a local authority website is created it needs to be publicised via its range of social media channels. Appropriate local-level social media channels need to be tagged to ensure even further spread.

Local amenity groups should also be contacted to obtain their input and assistance in seeking the appropriate owners or possible better preservation of the memorials.

10. In relation to question 9, how long should burial authorities be required to publicise their intentions, prior to taking corrective action?

Six months. A single notice in a newspaper, a single printed piece of A4 paper tied to the cemetery gates, a single letter sent to a decades old address are not sufficient. Six months of concerted effort to engage with family members while the memorial is safely quarantined behind Heras fencing should be the minimum expectation before radical action is taken to demolish a memorial that may have significant meaning to individuals or whole communities.

11. Please provide any views you have in relation to headstones or other memorials requiring urgent attention.

Naturally, there may be cases that require a memorial to be taken down immediately lest it cause injury to others where cordoning off the memorial would be inappropriate or impossible. In these circumstances the stone should be laid flat or partially buried at a sloping angle across its base. The inscription should be facing out. Where the monument has inscriptions on multiple faces these should be recorded where possible.

Photographs of the monument, both before and after stabilisation, should be taken and sent to the local authority archive for depositing with them for later access by interested parties. A clear notice of why the action was taken, when it was taken and by whom should be placed nearby to avoid the repeated misunderstanding that an act of criminal vandalism has taken place.

12. Please provide any comments you have on the proposed training requirements and the keeping of training records for burial authority staff.

You have specified clearly in your preamble that you do not require that staff should have any training beyond that necessary for the safe use of any relevant equipment and that you might add some best practice guidance at a later date. This somewhat negates the utility of this question.

Nonetheless, we would suggest that local authority staff should be trained in making a simple photographic and written record of any memorial that is to be laid flat so that this record can be sent to the county archives for ease of retrieval in the future. We would also hope that awareness of the sensitivities and emotional legacy of these memorials is built into any CPD training offered to staff working in graveyards.

It is also necessary for staff making devolved decisions on demolition work in historic graveyards to be aware of what should and should not be done. Many historic graveyards contain the upstanding ruinous walls of previous churches, chapels, session houses, outbuildings, burial vaults and mausolea, often long fallen out of use. These may not be listed but still require protection as they often contribute to the visual landscape of the locality and the place-related wellbeing of the community. Training with the county archaeologist may also be necessary to ensure that these remains are treated appropriately.

13. Please share your views on the designation of parts of a burial ground for different faiths.

Scotland is a multi-cultural society. It is right that this legislation sets out he legal basis, but not the required duty, for local authorities to look at designating small areas of new burial grounds for recognised faith groups. It is important that these faith groups have a clear mechanism to actively request such spaces, but they also must be prepared to assist local authorities with the management and onward costs involved in the maintenance and upkeep of these particular segregated sections of a larger municipal cemetery.

14. Please share your view on the proposed information to be collected in the burial application forms.

This provision looks right. A standardisation and simplification of this process across all 32 local authorities is welcome and overdue to reduce the ad hoc and outdated procedures that have developed over the past 30 years.

15. Please indicate if you think anything may be missing from the proposed accompanying documentation list, or should be removed from it.

Nothing to add

16. Do you think that an application for the burial of ashes in a burial ground should be accompanied by a cremation certificate, where available?

Nothing to add

17. Where a cremation certificate is not available, and it is not possible to obtain a copy, do you think that an applicant should be able to submit one of the following instead: 

Nothing to add 

18. Please share your view on the proposed information to be collected in the burial register entries. 

We would perhaps add descriptive and inscription information about any existing memorials or plans for future memorials so that the burial register entry can be immediately associated with relevant memorials in the future should the memorials become detached or lost from their lairs for whatever reason.

Private Burial – Qs 19 to 29

Nothing to add

30. Where an application for exhumation from a burial ground is made by a relative of the deceased who is also the lair right-holder but is not the nearest relative, do you think the applicant should be required to obtain written consent from the nearest relative(s) and any relatives of the deceased who have the same degree of kinship as the applicant (e.g. the applicants siblings)? 

Nothing to add

31. Where an application for exhumation is made by a nearest relative of the deceased but they are not the lair right-holder, should that relative be required to obtain the written consent of the lair right-holder and any relatives of the deceased who have the same degree of kinship as the applicant (e.g. the applicant’s siblings)?

Nothing to add

32. Where an application for exhumation from a burial ground is made by a burial authority, from whom should written consent be obtained? 

Our concern here is that exhumations should not become a frequented practice to encourage easier sale or other development of land or property previously used for burial.

As more historic cemeteries fall out use for regular interments and the often adjacent church buildings are sold for uses outside of religious purposes, the temptation to remove inconvenient human remains preventing sale or reuse of the land will be strong.

Exhumations of such remains should be seen as the very last resort and, in the event exhumation does take place, clear rules must be established and enshrined in law on reburial as close to the original site as possible. This may require use of ground penetrating radar and other means to identify appropriate burial places in the same cemetery, but such costs should be factored into any exhumation plans.

All efforts should be made to contact the lair owner and nearest relatives of any human remains to be exhumed. As discussed in previous questions, a single printed advertisement placed in the public notices section at the back of a local newspaper is wholly insufficient in a digital age. Clear notice must be placed on the Burial Authority’s website and the other routes discussed above to identify relatives should be pursued.

33. Please share any views you have on the proposed fast-tracked exhumation procedures? 

In an era of under-resourced and overburdened local authorities the temptation would be to use “fast-track” processes every time in order to reduce the burden of identifying relatives and lair owners described above. We believe that very specific reasons for justifying use of a fast-track process must be enshrined in the law so that there can be no grey areas. These might include the justifications that you list in your preamble, such as exhumation of a coffin at insufficient depth and its immediate deeper reburial in the same lair.

34. Thinking about the proposed feasibility report factors set out in the information box below, which do you think should be included in a feasibility study for exhumation? 

• A check of the condition of the coffin to determine feasibility to exhume
• Health and Safety Risk Assessment
• Archaeological assessment (by local authority archaeologist or Historic Environment Scotland)
• Consultation with the CWGC

In addition to the above, we also believe it is important to note any impact(s) that exhumations may have on adjacent structures and memorials. These impacts should not only be restricted to scheduled monuments as your preamble suggests.

35. Do you think there should be a time limit for carrying out an exhumation once authorisation has been given?

Yes

36. If you answered “yes” to question 35, what do you think the time-limit should be?

Three months should be sufficient. If a burial authority or other party has pursued and received an exhumation order they should be prepared to carry this out as quickly and as sensitively as possible. The matter should not be drawn out over the months and years following the original order.

37. Should requests for exhumation of known burials on private land be made to an Inspector of Burial, Cremation and Funeral Directors? 

If it is your intention to remove this power from the sheriff court then it should certainly be in the hands of an appropriate civil authority such as an Inspector of Burial, Cremation and Funeral Directors.

38. Where the person applying for exhumation from private land is not related to the deceased (e.g. a new landowner) what arrangements should be made for the exhumed remains? 

We repeat the same call as for public burial sites. Any request for exhumation or removal/alteration of memorial markers or mausolea should follow a specific procedure that entails a determined effort to locate and identify nearest living relatives through a variety of media, not just a public notice in the rear of a local newspaper.

39. Please share any views you have on exhumation of discovered human remains from outside a burial ground.

Once examined and investigated appropriately, every effort should be made to identify modern human remains and relatives found. If unsuccessful in this task, the remains should be reburied in an appropriate public burial site, with appropriate ceremony.

Your preamble specifies development near burial grounds and that developers apply for a “blanket exhumation order” via the sheriff court and make arrangements for reburial with the local authority. We believe that this should continue to be the practice. We are exceptionally keen that blanket exhumations should never become an automatic default position to facilitate land developments or property sales.

40. What is your view on the proposed information to be collected by each burial authority in the Register of Exhumation relating to the exhumation of human remains carried out in a burial ground for which it is the burial authority?

It looks right. We might add however that a query line may be necessary to be added for the exhuming party to record any items found with remains, eg wedding bands, jewellery, etc. and what became of these.

41. What is your view on the proposed information to be collected by each local authority in the Register of Exhumation relating to the exhumation of human remains authorised for private burial by that local authority?

As in the previous question, we would add that a query line may be necessary to be added for the exhuming party to record any items found with remains, eg wedding bands, jewellery, etc. and what became of these.

42. Do you think that no less than 6 months from the date the notice is issued is an appropriate length of time for the lair right-holder to consent or object to the restoration of a lair?

Yes

43. Do you think that no longer than 12 months from the date the notice is issued is an appropriate length of time for the lair right-holder to consent or object to the restoration of a lair?

Yes

44. Where the burial authority cannot identify the lair right-holder, please provide your views on how a burial authority may publicise the intention to restore the lair.

We believe that the traditional method of posting a letter to an old address, placing a small advert in the classified section at the rear of a local newspaper and a paper notice in a polythene pocket attached to the cemetery railings is no longer acceptable. In a digital age a dedicated section of the local authority website must be created to give fully accessible public notice of any intention to alter, demolish or repair lairs or associated memorials.

A full range of traditional and new digital medias should be adopted, with a story in the press, or an advertisement placed in a more prominent position in the newspaper and full cascade of the notice through community communication channels, just as local authorities community teams area already doing when they wish to publicise local events.

There needs to be a VAST improvement in the attempts to track down family members or individuals with an in interest in a lair or memorial.

45. What is your view on the proposed information to be collected in the Register of Restored Lairs? 

In addition to the data listed there needs to be a simple and clear photographic record of the work done, both before and after. A copy of this complete record also needs to be made publicly available and easily accessible in the county archive.

In the current digital age the inclusion of a photographic record should not be beyond the reach of any local authority. A simple app could be provided to every work team that allows all of the information required for the register and the photographic record to be collected on site and immediately uploaded to a cloud-based database for collation by an archive team.

46. If the lair is to be used for a further burial and it is not possible to return a headstone to its original position do you have any views on how it should be preserved or retained? 

We are enormously concerned about the possible unintended consequences of this part of the Act. Your preamble offers as an example that a headstone may be too damaged as a consequence of the exhumation process to be allowed to return to its original place over the now reburied remains. This is unacceptable.

If local authorities wish to create space in cemeteries by opening lairs and concentrating disarticulated remains into smaller spaces in those lairs, it should be incumbent upon them to repair and, if necessary, restore the grave marker they have had to take down in order to carry out this work.

Even a “deteriorating” headstone can almost always be reset and or repaired into a new and safe setting on the lair. The original expectation of the lair owner was that this would be the resting-place of the deceased in perpetuity, if the local authority, as the legal heir of the entity that originally struck this bargain, can no longer honour the agreement, proper repair of the burial marker is the very least that can be done.

If the marker truly has crumbled beyond all repair then a new marker with any known inscription details must be placed on the lair as soon as possible.

47. Please provide any additional views or comments you may have on any aspect of the proposed burial regulations.

Scotland’s Churches Trust is sympathetic to the increasing difficulty that local authorities face in finding new space for new interments.

We are however deeply troubled by the distinct possibility that this Act could allow a circumstance to pass that will give local authorities the option to clear many of our historic graveyards, particularly those around our churches across the country. It would essentially declare open season on many hundreds of incredibly special sites around the country, each containing a plethora of 19^th century and earlier burials and monuments. The vast majority of these may not have hosted a new burial in well over a hundred years, but that in no way diminishes their importance to visitors and local residents alike.

If anything, Scotland’s historic kirkyards need more legal safeguards and resource support put in place, not legislation that will further hasten their destruction. In addition to being the final resting place of hundreds of thousands of our forebears, the monuments within are often unique, fragile and irreplaceable works of art that have been too-long neglected. These monuments can be regionally or nationally significant historic artefacts in themselves as well as local or personal expressions of faith, love, fidelity and remembrance. They deserve to be protected like any other historic work of art.

Our graveyards, new and historic, each contain a trove of social, cultural and genealogical treasures that possess a wealth of distinct meanings, both for their local communities and visitors from elsewhere alike. The notion that cash-strapped local authorities around the country would be further empowered by this legislation to simply remove inconvenient historic grave monuments in their thousands and any other unprotected structures in Scottish graveyards is unthinkable and must not be allowed to pass.

As vital greenspaces, places of remembrance, historic sites and, in many cases, de facto outdoor sculpture galleries, it is time for national recognition of the potential positive gains to community wellbeing and local economies that these special sites could generate. It would be more beneficial to see our historic graveyards receive appropriate investment, support and protection from local and national government rather than create a situation which could unintentionally invite their wholesale clearance and destruction.

48-55 – Nothing to add.