THE Law Commission published, on 16 March, its final report on the law of burial and cremation in England and Wales, and made recommendations aimed at simplifying, clarifying, and modernising it, and dealing with the law reform required owing to the shortage of burial spaces.
The recommendations were based on a Consultation Paper on Burial and Cremation, and a public consultation carried out from 3 October 2024 to 9 January 2025. That resulted in 632 responses from the public, including religious communities, local authorities, cemetery and crematorium staff, celebrants, and funeral directors.
Historically, burial was the only option when a person died in England and Wales. The first crematoria were opened at the end of the 19th century. Currently, more than eight in ten funerals involve cremation. But parts of burial law have remained unchanged for more than 170 years and are now outdated.
Burial law has historic roots in the part played by the Church of England, religious dissent, and public-health reform in the mid-Victorian era. The result is that there are different laws applying to different types of burial grounds: local-authority cemeteries are lightly regulated through the Local Authorities’ Cemeteries Order 1977 (“the 1977 Order”); most private burial grounds are lightly regulated; Church of England churchyards and burial grounds are subject to ecclesiastical law; and the churchyards and burial grounds of the Church in Wales have specific Acts replicating some of the law that applied to them when the dioceses were part of the Church of England.
The Law Commission considered that burials on private land, for example in a person’s farm or garden, should be treated differently from those in a burial ground. It recommended that, when no payment was taken for a burial on private land, that land should not be considered as a burial ground. Therefore, some laws that apply to burial grounds would not apply.
Some requirements, however, should still apply to burials on private land. There was a particular risk that the next owner of the land might not be aware that there had been a burial there. It was recommended that it should be made a criminal offence to fail knowingly to register a burial made on private land.
The report addressed the problem of the shortage of burial space. A government survey in 2007 found that the average time before existing burial grounds in England and Wales would be filled was 30 years for local-authority sites, and less in urban areas. Finding new burial sites could be difficult, for reasons including changes in environmental law.
A grave could be “reclaimed” when an additional body was buried in the same grave above the level of the existing burial without disturbing it. Or an old grave could be “reused” when the remains from an earlier burial were removed and buried deeper in the same grave, or elsewhere within the burial ground.
At present, legislation permits graves to be “reused” for all London local-authority cemeteries. Other specific cemeteries have obtained similar powers through private Acts of Parliament.
Grave reuse and reclamation have been permitted in Church of England cemeteries since time immemorial, a decision of an ecclesiastical court being required if remains or memorials would be affected. The Law Commission did not make recommendations that would affect grave reuse and reclamation in Church of England churchyards.
To reclaim or reuse a grave, a burial-ground operator must first extinguish any existing exclusive burial rights in the grave. The duration of burial rights varies, and, in the past, many were issued “in perpetuity”, meaning for ever.
The powers to extinguish burial rights in London local-authority cemeteries cannot be used until at least 75 years have passed since the last interment in the grave. The Commission recommended that a period of 100 years must elapse between the last burial in a grave and either the burial rights in that grave being extinguished or the grave being reused. The Commission also recommended a new requirement that, if there were any remains left in a grave, they must be no more than skeletal remains for the grave to be reused, as a further protection to ensure the dignified treatment of remains.
Any burial ground can be closed to new interments though an Order in Council, an instrument issued by the Sovereign on the advice of the Privy Council. Such Orders were originally used to close burial grounds posing a public health risk. More recently, they have been used mainly to close full Church of England churchyards and burial grounds. The churches could then transfer responsibility for the maintenance of the churchyard to local authorities.
There is no provision to revoke an Order in Council; so once a burial ground was closed, it could not be reopened, even if the last burial was made so long ago that the land might now be suitable for burials again.
The Law Commission stated that reopening closed burial grounds might offer important benefits, especially for rural villages that faced a shortage of burial space. It might also be valuable for families who wished to make burials in churchyards in which they had strong emotional and community ties, but which were currently closed.
The Commission therefore recommended that the Sovereign in Council should have power to reopen closed burial grounds by an Order in Council. In doing so, the consent of the burial-ground owner, or the incumbent and the PCC, should be required.
The 1977 Order contains specific provisions concerning the Commonwealth War Graves Commission (CWGC) in local-authority cemeteries to protect the graves of service personnel who died during the two world wars. Similar provisions under ecclesiastical law are available in Church of England churchyards and burial grounds. Where grave reuse is currently permitted, there are provisions protecting Commonwealth war graves. There are no similar legal protections for those buried in private burial grounds, and service personnel who died outside the period of those two wars. The Ministry of Defence (MOD) takes responsibility for such graves.
The Commission recommended that the current powers of the CWGC be extended, and that the MOD be given the same powers. When a council sought to conduct maintenance activity in a local-authority burial ground, the CWGC and the MOD would be able to object to certain types of maintenance and to the reclamation or reuse of a war grave.
The Cremation Act 1902 contains restrictions, commonly known as the “radius clause”, on where crematoria are constructed and the distance they must be from residential homes and public highways. The Commission did not recommend repealing the radius clause.
The Commission also addressed the problems of dealing with cremated ashes that have not been collected from funeral directors. It was estimated that there were about 250,000 sets of uncollected ashes. That could be due to family disputes, death of the applicant for the cremation, or emotional reasons. Funeral directors had no legal authority to scatter or bury ashes, and, currently, crematoria had no duty to accept their return. The Commission recommended that funeral directors be given the right to return uncollected ashes to the crematorium where the cremation took place, and the cremation authority would then be under a statutory duty to accept them.
The Government will consider the Law Commission’s recommendations and decide whether to change the law.
