The Law Commission of England and Wales is conducting a public consultation on their provisional proposals to reform the law governing burial and cremation. They are seeking views of stakeholders and the general public. Read on to learn more and to find out how you can have your say.

What is The Law Commission of England and Wales?

The Law Commission of England and Wales is an independent body established by statute to make recommendations to government to reform the law.

The Burial, Cremation and New Funerary Methods Project

The Burial and Cremation Reform consultation paper is part of a larger project called the Government Project on Burial, Cremation and New Funerary Methods. This project came into being following a previous consultation, the 13th Programme of Law Reform 2017, and covers three areas – Burial and Cremation Reform, New Funerary Methods and Rights and Obligations Relating to Funerals, Funerary Methods, and Remains.

What is The Law Commission Doing in Relation to Burial and Cremation Reform?

On 3rd October 2024, The Law Commission released a consultation paper outlining background information and their proposals to reform the law governing burial and cremation.

The Law Commission is seeking to reform the law of burial in England and Wales, which is piecemeal, complex and outdated. It is also gauging solutions for unresolved issues in cremation law.

Why is Reform Needed?

Around half a million people die in England and Wales each year and almost all of their bodies will be either buried or cremated. Some of the law on burial is unchanged since the 1850s, and the main piece of legislation on cremation was implemented in 1902.

For each of these half a million deaths, the lives of many others will be affected – their grieving families, friends, and members of different communities and faiths. The Law Commission recognises that how we commemorate these losses and the respect that we show the dead is of significance not just to us as individuals, but to society as a whole.

The law as it stands is, in many instances, no longer adequate and offers too little protection for people who bury or cremate their family and friends.

What Does the Burial and Cremation Consultation Paper Contain?

The consultation paper contains provisional proposals for reform on a number of issues. Some of the key issues they consider:

Regulation of Burial Grounds

Pre the 1800s, the Church of England was mainly responsible for burials. During the 1800s, the first private cemetery companies were established and Burial Boards were created to oversee public cemeteries. In the mid to late 1900s, the old Burial Acts were replaced with simpler powers for parish and district councils to provide cemeteries.

As a result of the piecemeal evolution of burial, different laws apply to each of these sectors. The Law Commission are seeking to address this to ensure, where possible and appropriate, there are clear and uniform laws across all burial providers.

Reusing and Reclaiming Old Graves

The Law Commission states that the ‘available evidence suggests that grave space is running out in many parts of the country’. Amongst other things, this has an impact on religious and cultural communities that require burial. In addition, high demand for fewer grave spaces can also lead to the rising cost of burial.

Grave reuse and reclamation could help address these problems. Grave reuse is common in many other countries, but very few areas in England and Wales allow it, and some actively forbid it by law. The Commission will look what changes may be necessary, and acceptable, in order to create more burial space through this method.

Closed and Disused Burial Grounds

Closed churchyards in England can be transferred to their local authorities for maintenance. This is not the case in for the Church in Wales, and the high cost of maintaining old burial grounds can be a disincentive to opening new ones. The report will look at extending powers of transferal of maintenance to Churches in Wales.

The report also looks at whether disused burial grounds could be put to alternative use. The Disused Burial Grounds Act 1884 generally prohibits building on disused burial grounds. However, there are exceptions to this rule and with certain safeguards, land that was formerly used for burial can be redeveloped. However, this is not the case across the board, so for some private and local authority cemeteries a future change of use is not, at present, possible.

Lastly, regulations around things like depths of graves vary from one type of burial ground to the next, which can cause confusion. The Law Commission are not proposing uniform burial laws, but are keen to review and improve current regulations.

Cremation Law

Cremation was not widely practiced in the UK until the late 1800s, when Local Acts of Parliament enabled councils or corporations to establish crematoria. The Cremation Act 1902 enabled Local Authorities to establish crematoria too, and stipulated how cremation should be conducted in all crematoria.

Recent changes in cremation practices, and the development of new ‘cleaner’ types of crematoria and cremation, mean that the old acts are thought to be no longer fit for purpose. The consultation paper seeks opinions on whether the rules around where crematoria can be built should be retained or repealed.

In addition, a number of other important issues, such as what to do with uncollected cremation ashes, and the problem of disposal by funeral directors of devices such as pacemakers, will be addressed too.

Where to Find the Full Report

These are just a few of the areas and issues that are covered in the consultation paper. If you would like to learn more, you can read the full Law Commission Consultation Paper here, or for a less detailed account, see the Law Consultation Paper Summary.

How Do I Take Part in the Consultation Process?

To take part in the consultation, please go to Law Commission Consultation on Burial and Cremation online survey and fill in the online questionnaire. The consulting phase of this project closes on 9th January 2025.

The Law Commission would like feedback from as many stakeholders as possible. This includes not only organisations operating in this field, for example burial grounds or crematoria, but those who use these services too, for example funeral directors or members of the general public.

What Happens Once the Consulting Process is Complete?

After reviewing all of the responses, The Law Commission will publish their recommendations for law reform at the end of 2025. It will then be for the Government to decide how to take these recommendations forward, and for Parliament to pass any new Acts to change the law.

The more responses they receive, the better able they will be to create new rules and laws that benefit us all, and that create a burial and cremation system that reflects the needs and wishes of society today in England and Wales, so do get involved.