Burial Licences - New Procedure?

[1man1desk]

Posted by Duchess:

quote:Exhumation licences issued before the changes occurred still stand, so projects that have a licence can continue. What has changed is that exhumation licences are no longer being issued, which has stalled a number of projects

Wouldn't that be a matter of legal interpretation too?

If the basis of the MoJ's new advice is that they had no powers to issue licenses, couldn't that be interpreted to mean that existing licenses are no longer valid?

1man1desk

to let, fully furnished

[1man1desk]

Posted by Voice of Reason:

quote:Time for the IFA to stop sitting on its hands and issue some practical advice rather than write letters?

I would hope that the IFA would actually update us as members as to what we should be doing ie stop digging up human remains till resolved, or carry on - they palpably haven't done this.

To issue advice of that sort would be a very dangerous thing for the IFA to do. They would either be advising people to do something that may (or may not) be illegal, or to do something that would involve refusing to comply with planning conditions. Either way, they could open themselves to criminal prosecution or civil litigation. The only advice they can realistically give is - take legal advice, and then make your own decision.

The particularly unfair aspect of this is that it appears to be a decision for each individual archaeologist, not for archaeological units, as it would be individuals that would get prosecuted. However, units could obtain legal advice on behalf of all of their staff.

Could this situation be resolved in the short term through a statement by the MoJ or the Crown Prosecution Service that, pending clarification of the law, they would not seek to prosecute archaeologists excavating human remains, under certain defined circumstances?

1man1desk

to let, fully furnished

[Simon Collcutt]

That would certainly be my reading: past licences cannot be valid if there were never lawful powers to issue such licences. Good faith or proper intent, on the part of either the Coroner's Department or archaeologists, simply do not enter into the question. It is this 'absolute' legal situation, which cannot be avoided by agreement or compromise, no matter how 'sensible', which is so worrying and which, in my view, requires that the Government take the lead, the most obvious method being by seeking urgent judicial review.

[kevin wooldridge]

quote:Originally posted by 1man1desk Could this situation be resolved in the short term through a statement by the MoJ or the Crown Prosecution Service that, pending clarification of the law, they would not seek to prosecute archaeologists excavating human remains, under certain defined circumstances?

In effect they could give licences to excavate burials. No hang on, that's what they used to do...

[1man1desk]

I was thinking more in terms of the old HSE 'enforcement opinion', or whatever they called it, whereby they did not say that CDM didn't apply to archaeology (or that it did), simply that as a matter of policy they would not seek to enforce it.

1man1desk

to let, fully furnished

[Simon Collcutt]

The Ministry of Justice has today issued me the following advice, after a new application to remove human remains from their place of burial:


Dear Dr. Collcutt

My lawyer has just completed his consideration of your application in respect of the [human burials of late prehistoric date coming to light after soil stripping at a mineral extraction site].

According to our current understanding of the law and in the light of the information provided about the nature of the site at [...], we consider that section 25 of the Burial Act 1857 does not apply. For that reason, we are unable to issue a licence under the 1857 Act in relation to human remains buried there. So far as the burial legislation is concerned, therefore, we are unaware of any legal impediment to you proceeding to remove the remains, although you should be aware that there is a common law principle requiring human remains to be treated with proper respect.

In cases such as these we are now considering whether it might be helpful to advise what conditions would have been attached to a licence in this instance if we considered that section 25 of the Burial Act still applied. We will write separately on this point shortly.

As regards your intention to examine the remains and retain them for future study, we now take the view that the Secretary of State has no power to authorise or prevent you doing so. This is not to suggest that such examination or retention would necessarily be unlawful: the department takes an entirely neutral position on this question. There may, however, be other legal requirements (e.g. in relation to public health law) which place obligations on persons engaged in this type of activity, and you may wish to seek advice on such matters. As soon as we can provide any further information on these aspects, we will do so.

[...]

Kind regards

Brian Webb
Coroners Unit
Ministry of Justice


Just for the sake of completeness, the conditions usually applied in the past have been as follows:

(a) The removal shall be effected with due care and attention to decency;

(b) The ground in which the remains are interred shall be screened from the public gaze while the work of removal is in progress;

© The removal shall be to the satisfaction of the environmental health officer for the district in which the remains are at present interred and in accordance with any additional conditions they may impose;

(d) The remains shall, if of sufficient interest, be examined by [... the named osteologist];

(e) The remains shall be retained by [... the named museum] or reinterred in a burial ground in which interments may legally take place, and in any intervening period they shall be kept safely, privately and decently.


This advice is slightly less tentative than the previous version, although it is clear that we are still a long way from legal certainty. Both the MoJ and independent legal advisors with whom I have spoken recommend that Section 25 Applications should still be submitted for all burials (as before), so that the MoJ can be kept properly informed and can issue modified advice and/or instructions as the circumstances might require.

[BAJR Host]

Thanks so much Simon... I have had notice from the IFA that they are still awaiting a reply from the MoJ

This is however heartening - and perhaps we are seeing a dawning realisation on the MoJ hotshots that perhaps the implications of this reinterpretation may have some rather unforeseen results.

It lokos like we have at last something solid to go on.. and I certainly know a few contractors who will be glad of this extra information, allowing them to prepare documents to ensure that they are more than ready for this legal blip!

From all at BAJR... thanks!

Although I fear there is still some way to go... this I fell is a telling undestanding of the situation... one that will perhaps return us to the previous situation.

"No job worth doing was ever done on time or under budget.."
Khufu

[BAJR Host]

MINISTRY OF JUSTICE

BURIAL LAW AND ARCHAEOLOGY

1. In the light of a further review of the burial legislation in relation to the archaeological excavation of human remains, and as an immediate first stage of reform, the MoJ, proposes to proceed on the following basis with immediate effect:

* Exhumation licence applications under the Burial Act 1857 will be considered wherever human remains are buried in sites to which the Disused Burial Grounds (Amendment) Act 1981 or other burial ground legislation (eg Town & Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950; Channel Tunnel Rail Link Act 1996 etc. ...) does not apply. This will reverse the recent change of practice and is expected to apply to the majority of archaeological excavations. When licenses are issued, a time limit, normally of up to two years, will be set for re-interment of human remains; it will be possible to apply for an extension when circumstances justify this.

* The 1981 Act and other burial ground legislation will be regarded as applying only to extant burial grounds, in use or disused, which have not evidently been put to some other use. This legislation will not be regarded as applying to burial grounds which have been previously cleared of human remains, which have been built over or otherwise converted to commercial or residential use, or which have been put to agricultural use or have become uncultivated countryside. This approach will mean that relatively few burial sites of interest to archaeologists are likely to be subject to this legislation with the additional requirements it imposes. For sites to which the 1981 Act and similar Acts apply, directions will set a time limit, normally of up to 2 years, for re-interment of human remains; it will be possible to apply for an extension where circumstances justify this.

2. To assist archaeologists in making applications for exhumation licences or directions, a new form designed to collect the minimum information required is now available upon request.

3. During the course of the year, as a second stage of reform, consideration will be given to amending existing burial ground legislation so that it can be more responsive to 21st century needs. The aim will be in particular to allow otherwise lawful and legitimate activities, such as the archaeological examination of human remains, to proceed without the constraints of legislation not designed to deal with such issues, and with retrospective effect as far as possible. In taking this forward, the MoJ aims to continue to work closely with the Department for Culture Media and Sport, English Heritage, and relevant professional bodies.

4. Any archaeologist wishing to seek assistance in any particular case is invited to contact the MoJ on 020 7210 0036 (telephone numbers are liable to alter during the year).

Answers to frequently asked questions appear in the annex attached.

Coroners Unit, Ministry of Justice, Steel House, April 2008

Annex



FREQUENTLY ASKED QUESTIONS

Q1. Do I now need to apply for a licence where I have previously been told that I did not need one?

Not if the remains have already been removed from the ground. If remains have not yet been disinterred, an application may now be made.

Q2. Does an extant burial ground have to be recognisable as such?

Not necessarily; but a site which has clearly passed into other use is not an extant burial ground. In cases of doubt, contact the MoJ.

Q3. Will the MoJ continue to issue exhumation licences for trial pits in advance of site development work?

Yes (subject to the usual considerations).

Q4. Will the MoJ always require a firm date and details of arrangements for the re-interment of remains?

No. If no firm arrangements are proposed in the application, a time limit, normally of up to two years, will be specified in a licence or directions. For large and complex archaeological sites, a longer time limit may be specified if circumstances justify this; such cases should be discussed with MoJ.

Q5. Will it be possible to extend a time limit for re-interment if research has not be completed?

Yes, if circumstances make this reasonable. Apply to the MoJ, if possible before the expiry date on the licence (or directions).

Q6. Once study has been completed, will it be possible for remains to be deposited in a museum or church so that they are accessible for future research rather than re-interred?

This will be considered as part of the second stage of reform. It is intended that this should be possible, subject to appropriate conditions and safeguards, if acceptable and justified by circumstances.

Q7. Will remains from sites excavated under the DBG(A)A 1981 have to be re-interred within 2 months?

No. The MoJ is satisfied that the 2 month time limit specified in the Disused Burial Grounds (Amendment) Act 1981 relates to the time limit for reporting re-interment after re-interment has taken place. It does not impose a time limit between exhumation and re-interment, for which a time limit will be specified as in Q4.





"No job worth doing was ever done on time or under budget.."
Khufu

[vulpes]

The above is just a draft document. This was clarified by ALGAO shortly after distributing it.

[BAJR Host]

Thanks for clarifying that... scuse my exuberance

it is good news though!

"No job worth doing was ever done on time or under budget.."
Khufu