Burial Licences - New Procedure?

[Pipeliner]

Greetings all,

Not sure if this is the right BAJR section for this, but thought I would post it here anyway

This has just flashed across my screen and I wondered if anyone would care to shed any light on the situation or even pass comment?

It seems that burial licences are now being refused, see the generic statement below. I am therefore assuming from this statement that removal can go ahead but with Common law Liability, but that no post-ex can take place.?????????


Quote:
Thank you for your application regarding the above site.
This Department has been reviewing aspects of the burial legislation with our lawyers. That consideration is not yet completed, but two points in particular have arisen from the review to date. These are that disused burial grounds legislation applies to burial grounds of any age and that the Secretary of State's powers to impose licence conditions under section 25 of the Burial Act 1857 or to issue directions under the Schedule to the Disused Burial Grounds (Amendment) Act 1981 do not extend to permitting retention, testing, or examination of the remains - or indeed any intervening act which is not directly related to removal or the subsequent reinterment or cremation of the remains.

There are two further points to make here. The first is that it may be that the disused burial ground legislation does not apply to burial grounds which are not on the surface of the land. If so, it may be that such grounds, and the human remains that they contain, are not subject to regulation beyond the common law offence of offering indignities to human remains (if it is the case that this common-law principle would be recognised today).

The second point is that the fact that the Secretary of State cannot authorise scientific examination etc under the legislation should not be taken to imply that such examination etc would necessarily be unlawful.

All these points remain under consideration, and we are considering whether to instruct Counsel to advise on this and other aspects of the burial legislation. I should stress, however, that this is all likely to take some time. You may therefore wish to take your own legal advice on these questions.

In the meantime, we understand the need for your application to be dealt with expeditiously. You may wish to consider whether you can proceed on the basis that the only issue, so far as human remains are concerned, are whether the remains could be removed without committing the common law offence mentioned above. You may also wish to consider informing the Environmental Health Officer for the district of your intentions to see if they have any concerns. As for any retention, examination and testing of the remains, a possible option for the moment might be to rebury the remains in sealed containers capable of preserving them effectively for scientific examination at some later date, should that become a legal and practical possibility. We cannot guarantee, however, that such measures would necessarily amount to compliance with the law.

I realise that what I have set out here marks a departure from our previous practice and introduces unwelcome uncertainty, concerns and potential for delay. Although our legal consideration of the issues is not finished, we are satisfied that we have gone into them far enough to be sure that we cannot continue with our old approach."

[Paul Belford]

Presumably this has come about because of the splitting up of the former Home Office to create a 'Ministry of Justice'? Since the main aim of this reform is purportedly to spearhead "a national effort to protect the public from terror, crime and anti-social behaviour" (quote from the Home Office website) no-one has paid attention to small matters such as the nation's ancestral burial grounds. Probably no-one in either part of the new Ministry knows who has responsibility for historic graveyards, as it is probably not high on the list of priorities.

Consequently the wheel is being reinvented with a lot of junior bureaucrats scurrying around checking out case law as a result of your application.

The last time I applied for a burial licence it came back with Jack Straw's signature on it, probably about 10 years ago now. Policemen are getting younger too. You were lucky to have cardboard box...etc.

[m300572]

common law offence of offering indignities to human remains

Who decides what is an 'indignity'. I woulod have no problems with future generations rummaging around in my mortal remains but I can see cases where individuals or 'pressure groups' could object to any study being done - its an element that has been taken into account when dealing with specimens taken from foreign indiginous peoples by eplorers and antiquarians. If it is applied widely in this country that taking remains and studying them counts as an 'indignity' then it could stymie a lot of valuable research in future.

[achingknees]

A possibly connected story?

http://news.bbc.co.uk/1/hi/england/wilts...729945.stm

There is a potential huge loss to science if we go down this path.

[Gog]

This is bringing us back to the territory we covered in the neo-Druids thread - this time they've got HM Gov working for them. Its a strange world.

[Paul Belford]

According to the link posted by achingknees...

Jo Clark, secretary of Highworth Historical Society, said: "Recent changes to the law mean that there are many restrictions surrounding the retention of archaeological remains"

Can someone please enlighten me as to the changes in the law? As far as I was aware the Burial Act 1857 and the Disused Burial Grounds (Amendment) Act 1981 were still in force. The 2005 EH Guidance states that the law is "currently under review" and gives a link to a Home Office webpage no longer extant. This consultation process closed on 13th July 2004, and the consultation document is here:

http://www.homeoffice.gov.uk/documents/2...iew=Binary

However no further announcement has been made - or at least not that I have heard of, it is quite possible that I missed it. However I was not aware that the law had actually changed. The IFA has just this minute posted the story on their news site...

http://www.archaeologists.net/modules/ne...toryid=170

...so it seems I am not the only archaeologist to have missed this important change with potentially adverse effects on future scientific enquiry.

Incidentally no-one on Britarch seems to have noticed, they seem to have regressed into the 16th century and are inciting naval warfare between the Royal Navy and the Spanish fleet off Gibraltar. Perhaps a Britarch listmember on here could cross-post and wake them up?

[Manuport]

Of course the regression to the protection of Common Law respect of burials outwith recognised burial grounds rather than licencing would bring England in line with Scotland where this has always been the case.

Of note this position has not, to my knowledge, led to a lack of scientific investigation in Scotland ... given that burials excavated within a development control context would have analytical work required via the planning condition.

The Devil to pay and no pitch hot

[kevin wooldridge]

Sebastian Payne, English Heritage scientific advisor has posted a statement on Britarch outlining the current legal difficulties with the burial law.

[Pipeliner]

Well ...can it not be copied and cross posted here?

I dont have the time to wade through 16th century naval warfare ...yawn ...lol

[Paul Belford]

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.