7th June 2007, 06:31 PM
Cut and paste from the Britarch website...
Burial Act licenses and excavation of human remains: recent changes
About ten days ago, the Ministry of Justice began to advise that licenses under the Burial Act 1857 are no longer thought to be appropriate for many sites for which licenses would previously have been issued. In some cases, the Disused Burial Grounds (Amendment) Act 1981 would apply, but for many others there would probably not be any regulation under the burial laws at all.
The MoJ had previously been working on the basis that the Disused Burial Grounds (Amendment) Act 1981 did not apply to burials more than about 500 years old, and that for older burial grounds, and in other circumstances, licences under the 1857 Burial Act could be issued. Their recent legal advice is that the 1981 Act applies to disused burial grounds irrespective of their age, provided that the ground in question is still, in effect, a burial ground, even if disused. However, if the burial ground has passed into other use, for example if it has already been built over, neither the 1857 nor the 1981 Acts apply.
The MoJ has also been advised that in cases where those Acts apply, the MoJ does not have the powers to authorise (or prohibit) the study of excavated human remains or the removal of samples from them for analysis, and that the legislation expects the reburial of the excavated human remains to take place.
The position is still not entirely clear; however it appears that:
* in probably a small additional number of cases where older disused burial grounds have not passed into other use, it may be necessary to comply with the more restrictive regime of the Disused Burial Grounds (Amendment) Act 1981 (which involves, amongst other things, giving 6 weeks' public notice)
* in cases where either Act does apply, the MoJ may have to require reburial, which may preclude longer-term retention for future study
* in many cases, archaeologists and developers may no longer be required to obtain licenses under the Burial Act 1857, and may be free to proceed, at least so far as burial legislation is concerned, without statutory constraints on the removal, study, sampling and retention of buried human remains.
At present, when archaeologists expect to encounter burials they would be well advised to apply to the MoJ in good time to clarify the status of the site they propose to work on and whether either Act applies. If human remains are encountered unexpectedly, it is unlikely that either Act applies; if in doubt, again MoJ are willing to advise. Archaeologists are of course expected, both ethically and under common law, to treat human remains with respect.
We are of course concerned at the present uncertainty, as it risks causing unplanned delay to time-sensitive projects, resulting in disruption and additional cost. We are also concerned that a requirement for reburial might in some cases prevent us from retaining important series of excavated human remains for further research, resulting in a loss of understanding of the past.
We are working actively with the Ministry of Justice to clarify the position; we are concerned that it was not possible to have any prior consultation and that there is as yet no published guidance, but understand that MoJ intends to ensure as far as possible that any disruption to the work of archaeologists and developers is kept to the minimum. At the same time we welcome yesterday's Government Response to the Consultation on Burial Law, which proposes some relaxation in the regulation of the excavation of human remains for archaeological purposes, and look forward to working closely with the Ministry of Justice to achieve this goal.
Sebastian Payne
Chief Scientist, English Heritage
This would seem to suggest that nothing has actually changed in law, it seems to me simply that the Government has reorganised the Home Office so that the a*** no longer speaks to the elbow.
Burial Act licenses and excavation of human remains: recent changes
About ten days ago, the Ministry of Justice began to advise that licenses under the Burial Act 1857 are no longer thought to be appropriate for many sites for which licenses would previously have been issued. In some cases, the Disused Burial Grounds (Amendment) Act 1981 would apply, but for many others there would probably not be any regulation under the burial laws at all.
The MoJ had previously been working on the basis that the Disused Burial Grounds (Amendment) Act 1981 did not apply to burials more than about 500 years old, and that for older burial grounds, and in other circumstances, licences under the 1857 Burial Act could be issued. Their recent legal advice is that the 1981 Act applies to disused burial grounds irrespective of their age, provided that the ground in question is still, in effect, a burial ground, even if disused. However, if the burial ground has passed into other use, for example if it has already been built over, neither the 1857 nor the 1981 Acts apply.
The MoJ has also been advised that in cases where those Acts apply, the MoJ does not have the powers to authorise (or prohibit) the study of excavated human remains or the removal of samples from them for analysis, and that the legislation expects the reburial of the excavated human remains to take place.
The position is still not entirely clear; however it appears that:
* in probably a small additional number of cases where older disused burial grounds have not passed into other use, it may be necessary to comply with the more restrictive regime of the Disused Burial Grounds (Amendment) Act 1981 (which involves, amongst other things, giving 6 weeks' public notice)
* in cases where either Act does apply, the MoJ may have to require reburial, which may preclude longer-term retention for future study
* in many cases, archaeologists and developers may no longer be required to obtain licenses under the Burial Act 1857, and may be free to proceed, at least so far as burial legislation is concerned, without statutory constraints on the removal, study, sampling and retention of buried human remains.
At present, when archaeologists expect to encounter burials they would be well advised to apply to the MoJ in good time to clarify the status of the site they propose to work on and whether either Act applies. If human remains are encountered unexpectedly, it is unlikely that either Act applies; if in doubt, again MoJ are willing to advise. Archaeologists are of course expected, both ethically and under common law, to treat human remains with respect.
We are of course concerned at the present uncertainty, as it risks causing unplanned delay to time-sensitive projects, resulting in disruption and additional cost. We are also concerned that a requirement for reburial might in some cases prevent us from retaining important series of excavated human remains for further research, resulting in a loss of understanding of the past.
We are working actively with the Ministry of Justice to clarify the position; we are concerned that it was not possible to have any prior consultation and that there is as yet no published guidance, but understand that MoJ intends to ensure as far as possible that any disruption to the work of archaeologists and developers is kept to the minimum. At the same time we welcome yesterday's Government Response to the Consultation on Burial Law, which proposes some relaxation in the regulation of the excavation of human remains for archaeological purposes, and look forward to working closely with the Ministry of Justice to achieve this goal.
Sebastian Payne
Chief Scientist, English Heritage
This would seem to suggest that nothing has actually changed in law, it seems to me simply that the Government has reorganised the Home Office so that the a*** no longer speaks to the elbow.