Proposed Law Commission reforms to free up grave space
The Law Commission is seeking to reform the law of burial in England and Wales, which it says is “piecemeal, complex and outdated”. V. Charles Ward looks at the background to the proposals ad whether they go far enough.
Amongst the more predictable proposals contained in the Law Commission Consultation on Burial and Cremation, launched 3 October, 2024, is that all burial authorities in England and Wales should be given statutory powers to reopen and reuse existing graves after 75 years from the last burial. Radical, the proposal is not. Burial authorities in Greater London already have such powers, which were conferred by the London Local Authorities Act 2007.
What is surprising is how little those existing statutory powers have been used by London authorities. Is it because of the complexity of having to go through a detailed administrative process, which would include trying to contact the existing registered owners of those graves as well as other publicity requirements? It is important that any roll-out of legislation enabling grave re-use is at least workable. At the moment, it all seems too cumbersome. But this has not stopped the owners of the privately owned New Southgate and Highgate Cemeteries conferring similar powers on themselves by private Acts of Parliament, namely the New Southgate Cemetery Act 2017 and the Highgate Cemetery Act 2022. So far, Bishops Stortford is the only council outside London to promote similar legislation, in the form of The Bishops Stortford Cemetery Act, 2024, to enable grave re-use at its Old and New Cemeteries.
The current Law Commission proposals are driven by the fact that, on average, local authorities have less than 30 years space left in their cemeteries, with the problem being even more acute in urban areas. A consequence of these proposals, if adopted, could mean that many closed cemeteries, including those churchyards for which district and parish councils have inherited maintenance responsibilities under section 215 of the Local Government Act 1972, could be reopened for fresh burials, with income being split between the parochial church council which owns that churchyard and the local authority which has statutory responsibility for maintaining its. More interesting is a suggestion that local authorities be given better powers to intervene where a private-cemetery is failing and possibly take over maintenance and recharge its costs in so doing to the cemetery owner.
Other minor suggested reforms fill legislative gaps. For instance, the law currently allows crematorium operators to bury or scatter uncollected ashes, but there is nothing to say what happens when those ashes had previously been released to a funeral director and then remain uncollected by the bereaved family. Currently, that funeral director would have to store the ashes forever. What is now proposed is that a funeral director will be able to return uncollected ashes back to the crematorium, which would then use its own statutory powers to scatter or bury them. Building new crematoria should also become easier, with the proposed abolition of the rule, introduced by the Cremation Act 1902, preventing construction of a crematorium within 200 yards of a dwellinghouse, without the consent of every owner and occupier of that property.
What is missing from the Law Commission consultation, is any proposal to rationalise burial law, which, for all practical purposes, has existed unchanged for nearly two centuries. In fact, there is no uniform system of law governing the management of burial grounds.
Which system of law applies to a particular burial ground depends on whether it forms part of a churchyard; one of the earliest cemeteries established by private Act of Parliament; a local authority cemetery governed by the Local Authorities Cemeteries Order 1977, or one of the newer private cemeteries established under modern company legislation. To pull all that together, might just be too big a task.
Modern cemetery law has its roots in the Cemeteries Clauses Act 1847, which consolidated the provisions of earlier private legislation and provided model-clauses which could be adopted in later Acts of Parliament. That 1847 legislation still remains in force, and laid the foundations for more modern cemetery legislation, including the Local Authorities Cemeteries Order 1977. But the 1847 Act has never applied to parish churchyards, which are governed by an older system of ecclesiastical law dating back 1000 years.
The Law Commission consultation closes on 9 January, 2025 and it will then review all responses before deciding on final recommendations for law reform, which are expected to be published at the end of 2025, and which will include a draft bill.
The issue then is how long it will be before any parliamentary time can be found to translate these recommendations into new legislation. And, even if that legislation is passed, how many burial authorities will actually use it? So there are still many uncertainties. For the time being, we will have to work with the several disjointed streams of burial and cremation law as they currently exist.
V. Charles Ward is ICCM Company Solicitor and author of Essential Law for Cemetery and Crematorium Managers – 2025.
