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Exhumation law. and MoJ - a serious issue - BAJR - 19th April 2013
Dear David,
Thanks for your reply of the 10th April and please do put a call out for information.
My thinking below may be of interest for display, to inform about exhumation law.
It also requests an answer to my query, about who in the MoJ wrote the letter which you have been displaying since 2007. It may have been sent by a number of civil servants at the time.
Renewed thanks.
John Bradfield
Exhumation Licences & Law
As you will see, John Bradfield has asked if anyone can put a name and date to the stereotyped letter from the Ministry of Justice, displayed on this website since the 07/06/2007. If you can help get in touch.
Here is his outline of relevant legal issues:-
"I have long written on laws connected with bereavement and was asked to help, after graves created within living memory in Halifax, were destroyed in 1993 by a builder, armed only with an exhumation licence. The small print did say that exhumation licences are not permissions to destroy or remove gravestones owned by families and cannot override their "burial rights". Whoever purchases those rights, be they in a public cemetery or anywhere else, decide who can and cannot be buried in and exhumed from those graves. Since 1964 with the Church of England and 1974 with public cemeteries, rights have been purchased for up to 100 years. Cemeteries may now sell rights for as little as 20 or 30 years. When those rights expire, another charge would be made for a further period of time, if control over burials and exhumations is to be retained. Religious, welfare and other charities can still give or sell perpetual burial rights and where those exist, exhumations cannot take place without the consents of the owners of those rights. The exception, is when some aspect of law has brought those rights to a premature end. What were once called "pauper graves" have no owners of "burial rights" and unrelated individuals are buried together.
Law on exhumation in England and Wales
The law on exhumation licences in England & Wales was first introduced by Section 25 of the Burial Act 1857 but it does not apply to all graves in all places. That has been clear since at least 1867, when senior judges decided that neither Her Majesty the Queen (then Victoria) nor any Secretary of State, have powers to make decisions under any of the Burial Acts, in connection with any places with graves, where those Acts do not apply. As they do not apply to all places of burial, that means that exhumation licences cannot be issued for all places of burial.
That should have been known by the Home Office, from 1857 if not 1867, when it had responsibility for issuing exhumation licences. The law did not change and has not changed since 1857. Just before the Ministry of Justice became responsible for issuing exhumation licences, a civil servant admitted in an email, that Home Office staff had no knowledge of the 1867 judgement, even though I had been flagging it up before and after the publication of my research on law in 1994 and later, in response to formal consultations. Staff were clearly sticking their heads in the sand for reasons which only they could have explained. That they never did and exactly the same is now happening with staff in the Ministry of Justice.
I note that some archaeologists refer to "burial licences" but burials are not licensed. Others have raised questions about whether some aspect of exhumation law has changed in recent times and if so, what are the implications? No laws have changed and that is the problem. A new law is needed and it would make sense to have a specialist law for archaeological exhumations. I have suggested elsewhere, that archaeologists draft their own law and submit it for consideration, through either House of Parliament. Another possibility is to make an application for a Private Act on the subject but that could be costly.
The text of a letter by someone in the Ministry of Justice appears to have been displayed on the BAJR website since 7th June 2007. It has the appearance of being a stereotyped letter which may have been sent to numerous archaeologists around that time. Can anyone tell me the exact date of such a letter and the name of the signatory? Copies of any other letters explaining the thinking within the Ministry of Justice around that time and since, would also be appreciated.
Outlining the basics
It may help if I attempt to outline some basics on law, in view of misunderstandings on the subject. If anyone disagrees with me, please quote chapter on verse on any laws or court cases, so that evidence can be compared.
As mentioned, licences can only be issued if the Burials Acts from the 19th century apply to the land in question. That is beyond dispute. Those Acts were passed essentially for the smooth running of public burial grounds, where members of the public have an automatic or common law right to be buried. The common law right to be buried in a public burial ground, must not be confused with purchasing the "burial rights" for one or more individuals to be buried in one particular grave - see above. It is unclear, whether or not the same Burial Acts apply to private burial places, with no automatic or common law rights of burial, e.g. farmland and orchards, where members and friends of the same family are buried once in a blue moon. However, what is clear, is that those Acts do not apply to former hospital and religious burial grounds, where no burials have taken place for 10 or more years. That was decided by senior judges in 1867 and that legally binding precedent was followed in 1880, by the Master of the Rolls, one of the most senior judges in the land.
Those two cases probably explain why in 2007, the Ministry of Justice was advised by its own lawyers, that it is not legally possibly to issue exhumation licences for archaeological sites. If issued nevertheless when the licensing law does not apply, the licences are invalid and worthless. Bizarrely, they are worth the paper they are written on, because the police and Crown Prosecution service will not give time to making sense of this aspect of law and the criminal activities which frequently take place, because of that lack of understanding and lack of concern. They will simply believe that legally invalid licences are valid or if they have reason for doubt, then if the past is a good indication of the future, they will still not intervene to protect graves created within living memory.
Regarding a UCL internet article, 'Resolving the Human Remains Crisis in British Archaeology', Prof. Mike Parker Pearson agreed that the meaning of that article is, "Lawyers acting for the Ministry of Justice decided (in or around 2007) that the Burial Act 1857 did not in fact give the government the power to grant exhumation licences for the excavation of human remains from places which are no longer kept or managed as burial grounds or former burial grounds and thus it was never possible and is not possible now, to issue licences for such places". That has always been my understanding of the law.
It has been suggested by some, that instead of applying for licences, exhumations could take place using "directions" issued under the Disused Burial Grounds Acts 1884 & 1981 (DBGAs). That makes no sense unless the exhumations are for the sole purpose of erecting a legitimate religious building. My reading of the DBGAs, is that they have no relevance unless the burial place is or was owned by a religious organisation. It appears that the Ministry of Justice may believe that anything can be built on such a place but that interpretation has never been explained. All secular burial places are excluded from that legislation, presumably because there would be no need to erect within them, religious buildings. Whatever the reason, it needs to be explained by the Ministry of Justice.
There is nothing in the DBGAs which even hints of being able to build anything and everything. That idea may have come from discussions in Parliament prior to the passing of those Acts. However, if the courts are called upon to clarify the meaning of any wording in those Acts, the courts must not accept or consider, any information from Parliamentary debates, prior to the passing of those Acts, such as from Hansard and newspapers, (Lord Diplock, HL 1982). Laws must be given literal interpretations, as would be done by a good English teacher. Only when the result would be absurd, would other interpretation approaches be considered.
The legal use of DBGAs and the extent of their purpose
What is clear, is that the DBGAs cannot be used simply to exhume for archaeological, educational or scientific reasons. That leaves the question of whether those Acts apply to all former places of burial, regardless of age? At face value the answer must be "Yes". However, the judgement given in the 1867 court case mentioned above, about the unrelated Burial Acts, does suggest that something similar could be decided about the DBGAs., if tested in the courts. Exactly what that might mean is far from certain. It has been suggested that the DBGAs might not apply if the place does not look like a burial ground on the surface. That seems bizarre, as the use of gravestones is comparatively recent and places with no gravestones look like any other land. There is nothing in the DBGAs which might suggest that there has to be gravestones. Another possibility is that a court might decide that the DBGAs do not apply to burial places over a certain age but where could anything other than an arbitrary line be drawn? Even if the burial places had to be post Reformation, how could an exact date be determined for the Reformation and the graves? Even if it were possible to give or take 50 or 100 years, that could not work in practice, because a definite date for the burials would have to be known in advance, in order to add or subtract whatever number of years. Even if burials had to be within the last 200 years, how could anyone be sure of the exact dates of the burials, as very few accurate records exist? The Registration of Burials Act 1864 imposed a requirement to keep accurate records in all burial places but that has been ignored by many religious and secular landowners right up until the present time. Another possibility is that the courts might decide that the DBGAs do not apply to former burial places, which have been used for other purposes for more than a given length of time - even as little as 10 or 15 years.
That raises another question of whether any land can be used for more than one function? Burial grounds adjacent to churches were used as play areas and the living danced and argued with each other literally over the dead, until gravestones started being erected and got in the way of social activities. Presumably those were shunted off to village halls and villages greens. Not only are burials now taking place in nature reserves but wildlife conservation activities may be the primary function on the land. It may, therefore, be decided by the courts, that the DBGAs do apply, even when other activities are already taking place on the land.
Returning to exhumation licences
Returning to exhumation licences, the wording of the law is contained in Section 25 of the 1857 Burial Act. That section is very short. It does not apply to any graves which have been legally consecrated by the Church of England. Otherwise, it does apply to "any body or the remains of any body ... in any place of burial". At face value, "any" must surely mean "any"? The answer to that is both "Yes" and "No".
Any text books on law stress the vital importance of reading any word or words within the full context of any law. That includes having to consider laws as worded by Parliament and what the courts may have decided, in legally binding precedents. Only by understanding the context, can specific words, sentences, paragraphs and so on be properly understood. Taking a word or sentence out of context is dangerous, because that could so easily result in flawed conclusions. It is because the whole context of law is not considered, that the wording of Section 25 is misunderstood. As the 1867 judgement tells us that the Burial Acts do not apply to all former places of burial, the word "any" can only apply to "any" places where the Burial Acts definitely apply. Anything else would obviously be contradictory and legally absurd.
Any Secretary of State can issue a valid exhumation licence and "prescribe" as a "condition" of that licence, any "precautions". There is no other wording about what can be done with remains once exhumed. So the question about whether they can be retained for longer than a given length of time and have to be reburied, cremated, curated or whatever, all hinge on whether or not those matters can be dealt with according to the discretion of any Secretary of State.
The 2012 Court of Appeal judgement in Rudewicz -v- Secretary of State for Justice, mentioned that the discretion is only limited by having to be rational and so on. Legal constraints on discretion come from such things as principles of natural justice, human rights and administration law. What that appears to mean, is that any Secretary of State can issue an exhumation licence, (as long as the Burial Acts apply to the land in question), with any "precautions" which are rational, reasonable, relevant and so on.
Would curation be a "precaution"?
When trying to understand the limitations which can be imposed, "precautions" seems to be the one and only key word in the law, requiring very careful interpretation. If a "condition" is imposed to rebury exhumed remains, is that a "precaution"? Would cremation be a "precaution"? Would curation be a "precaution"? Any "condition" which is not a "precaution" is ipso facto invalid and unlawful.
To give the word precaution its common meaning, it would presumably have to prevent something. An obvious precaution would prevent a physical danger, such as the collapse of the grave sides but I have never seen a licence with such a condition. So, the most obvious and at times necessary precaution may never have been used. One answer might be that health and safety legislation automatically addresses that issue. That may not be so if the exhumation is not part of paid employment, i.e. health and safety at work. Anything done by volunteers in connection with exhumations organised by voluntary organisations with no staff, may not be covered by "health and safety at work". If so, then licences for purely voluntary work, would appear to require a mention of the need to take all reasonable health and safety "precautions".
The Burial Acts were presumably intended for the smooth running of burial grounds and it being necessary to obtain a Church of England permission known as a faculty, when moving "a body" from one legally "consecrated place of burial to another". There is only mention of "a body" and no mention of the "remains" of a body in connection with faculties. Any other exhumations in burial grounds regulated by the Burial Acts require licences, i.e. in any land which is not legally consecrated. However, the law appears deficient, in that even with valid exhumation licences, there is nothing which gives any clues as to what should be done with exhumed remains. It is implied because of the wording about faculties, that bodies or remains moved with licences will also be from one "place of burial" to another. That would seem to be the logical conclusion of a literal interpretation of the law and the fact that the Burial Acts are about the smooth running of burial grounds and not activities or places outside them. The licensing law does not mention cremation, because it was almost another 50 years, before cremation took off as we now know it, with the first Cremation Act of 1902. The licensing law makes no mention of archaeology, presumably because that is not relevant to the day-to-day management of burial grounds. There is no mention of international law and protocols, about returning human remains to indigenous (or as I heard a child say "ingenious") peoples in other parts of the world. However, it may be that the licensing law cannot be read in isolation and is consequently altered by more modern legal principles and legal obligations. Human rights are but one example and that includes the return of human remains to indigenous communities in other parts of the world, as already mentioned. In addition to burials, the courts might accept a return to the practice of retaining skeletal remains in our homes or "any other means" of disposing of them, as Acts of Parliament have long since stated that bodies can be "disposed" of by "burial, cremation or any other means".
Having to screen an area from public view, the involvement of environmental health officers (EHOs) and until very recently having to sprinkle quicklime or use some other disinfectant, do have the more obvious appearance of being "precautions". However, if they are irrational, unreasonable and so on, they are legally invalid and unlawful or ultra vires.
Screening involves sensibilities and trying to come to sound decisions on those is tricky if not impossible. One person's sense is another's nonsense. Whether the decision of a Secretary of State is sense or nonsense, would be judged by what is rational, reasonable, relevant and so on. It might be possible to take account not only of health and safety but psychological principles, religion and other matters, as long as they result in reasonable "precautions".
EHOs have rightly said their job is not about the policing of sensibilities, and as exhumations pose no risks to health, they have no useful role to play. For many years, the Home Office clearly disregarded, intentionally or otherwise, the advice of its own consultant Mike Green, Emeritus Professor of Forensic Pathology. He has long stated that exhumations of even recently buried bodies are no more of a risk to health than gardening, so protective clothing is unnecessary. Should EHOs be used for policing gardening activities? As the soil is jam-packed with germs, why aren't EHOs running around in allotments with clipboards and decked out in safety gear? Why doesn't the law force us to spray disinfectant in every direction when gardening and stop children from making mud pies? As germs in the soil and any connected with any of us when we die, are adequately dealt with by simple hand-washing, it made no sense over about 150 years, to impose the "precaution" of having to sprinkle quicklime when exhuming. That is dangerous in that it could blind anyone if blown into their eyes on a gust of wind.
A danger in law
So, we can confidently predict, that the courts would strike down as unlawful or ultra vires, any such "precautions", if judged irrational, unreasonable and/or pointlessly dangerous. Judges would surely have reprimanded the Home Office and Ministry of Justice, for perpetuating a pointless danger and irrationally reacting to harmless exhumations as though they posed dangers to health. The question, then, is why the Home Office and Ministry of Justice have appeared so amateurish on such important issues for so long and with no end in sight? Why are they not the experts on their own subjects?
It may be, as law professor Paul Campos once said, "It's difficult to get someone to understand something when their salary depends on them not understanding it". It looks to me as though civil servants are paid to keep their heads down, even when that results in routine decisions which are unlawful, resulting in actions by others which are criminal, e.g. exhumations carried out using invalid licences and contrary to common law, which has no limitation on penalties. If that is understood by some archaeologists, they too have been putting and keeping their heads in the sand.
For no reason other that the failure of relevant public organisations to understand and enforce this aspect of law, including the police and Crown Prosecution Service, unlawful exhumation licences are a bizarre protection against common law prosecutions. Because of powerful forces behind the scenes and promotions and salaries depending on conformity and not rocking the boat, neither the police nor Crown Prosecution Service would be tempted to prosecute, over unlawful decisions issued in the name of any Secretary of State. That was made clear in Halifax in 1993, (see first paragraph above), when the police did nothing about the illegal destruction of family graves and gravestones. If children or teenagers vandalise a grave, they will be swept into the courts. When adults destroy whole burial grounds where graves have been created within living memory and in the face of public protests, expect no decisive or effective help from the police, CPS., other public servants or politicians. Unproductive letters will fly in all directions until everyone settles down to carrying on exactly as before.
At the end of the day, politicians must be held responsible, for failing to deliver sound laws and allowing endless incompetence to continue. As politicians have yet to demonstrate that they can run Parliament in an effective and efficient manner, they are sending out a message that we should expect other public services to be equally bogged down with incapacitating bureaucratic procedures, rather than delivering efficient and effective services. Parliament should set the highest standard by which all public services can be measured. At present, it seems to have no way of prioritising matters of urgency, so they can be swiftly addressed through a political consensus, to deliver modern and sound laws. The courts have a fast track procedure and something similar is desperately needed for the way Parliament considers new legislation. Archaeological exhumations are but one of many examples calling out for new legislation. Even matters of urgency will keep being kicked into the long grass, until and unless something drastic happens. Law breaking is not enough to tip the balance, in that public servants breach the law with routine regularity, knowing they do so with tacitly agreed impunity. What happened in Halifax in 1993 and over decisions on exhumation licences in and after 2007, are but two examples of perpetuating breaches of the law by the government. That may continue for another 156 years unless dealt with decisively by MPs and/or Peers in Parliament.
John Bradfield.
Former Medical, Psychiatric & Child Care Social Worker & Tutor.
Pioneer of an empowering approach to bereavement, through the provision of free advice and information on relevant laws.
NB
There is more discussion on the Law & Religion website and for the 1867 & 1880 judgments, see
http://www.exhumationlaw.moonfruit.com/
Exhumation law. and MoJ - a serious issue - Dinosaur - 19th April 2013
Very interesting - have passed on the link to a few people who probable won't look here :face-approve:
Exhumation law. and MoJ - a serious issue - BAJR - 19th April 2013
Thanks for that... this does seem to need some serious heads
Exhumation law. and MoJ - a serious issue - archaeologyexile - 20th April 2013
Good stuff, but it would be worth stressing that this is the English situation and not applicable to Scotland.
Exhumation law. and MoJ - a serious issue - BAJR - 20th April 2013
I would love to see the company that tries to get an MoJ licence for Scotland
but then again, with English companies crossing borders perhaps they would.! for reference... it is the procurator fiscal / and or Police you must report to. as remains are seen as ownerless goods. ie nobody can own a body - there are all sorts of complications in excavation of human remains... read this The Treatment of Human Remains in Archaeology Historic Scotland Operational Policy Paper 5thank you for your cooperation
Exhumation law. and MoJ - a serious issue - kevin wooldridge - 20th April 2013
But.....most archaeological 'exhumations' these days take place as a result of development of former burial grounds. Therefore the 1884 and 1981 Disused Burial grounds legislation applies as well as the 1857 and 1867 Acts. The 1981 legislation (section 7 of Schedule 2) gives the final say to the Secretary of State ......never really understood why the MoJ wrote what they did in 2007. BTW my recollection was that the original MoJ letter went to the IfA. They would know who signed it.....
Exhumation law. and MoJ - a serious issue - pdurdin - 20th April 2013
So what's the deal for archaeologists in England when it comes to excavating skellibones? I scratched my head for a while over the long post above but I couldn't get any clear conclusions out of it.
Is excavating burials allowed/disallowed by default?
Does it depend on having an exhumation licence?
Will the need for a licence depend on the nature of the site being excavated?
Where/who should be applied to for a licence?
Is reburial a legal requirement in any situations?
Exhumation law. and MoJ - a serious issue - CARTOON REALITY - 21st April 2013
I've never known a member of the deceased to complain.
Not yet anyway -
Exhumation law. and MoJ - a serious issue - kevin wooldridge - 21st April 2013
Can I recommend the English Heritage/CofE working party publication. Although designed primarilly for post 7th century burials it contains advice applicable to burials of all dates.....not sure how it sits legally with the MoJ, but on many occassions CofE exhumations are dealt with by faculty rather tha licence (as the publication explains) http://www.english-heritage.org.uk/publications/human-remains-excavated-from-christian-burial-grounds-in-england/16602humanremains1.pdf
Exhumation law. and MoJ - a serious issue - Dinosaur - 21st April 2013
kevin wooldridge Wrote:....most archaeological 'exhumations' these days take place as a result of development of former burial grounds...
Most of the skellies I've dealt with in the last couple of decades have been liberally (and often singly) scattered across the landscape. And often burials come across in trial trenches are of uncertain status - are there 200 more just beyond the trench? Certainly on several of our local Roman sites small 'family plots' of sometimes only a couple of burials are common, and cremations are scattered apparently at random.
How do you define a 'burial ground' or cemetery?
And how are you supposed to know the date of unaccompanied burials at the time of application? - we've got some in the office at the moment which were dug as C3rd-4th Roman but C14 showed to be C8th-9th middle Saxon, thereby shifting them across the AD700 divide...