Law Commission proposes overhaul of "complicated and out of date" laws covering burials

The Law Commission has proposed radical changes to laws on reusing graves in local authority, church and private cemeteries.

In a consultation open until 9 January 2025, it said the proposals sought to update laws that in some cases date back 170 years and this had been prompted by concerns about legal complications when cemeteries faced running out of space and wanted to reuse older graves.

There are also proposals on when closed burial grounds could be reopened. 

The Law Commission said burial space is running out across England and Wales.

As long ago as  2007 a Ministry of Justice survey found local authority cemeteries had on average 30 years’ space left, with less in urban areas.

Grave reuse could provide a solution but this is permitted only in London local authority cemeteries and a handful of others that have obtained their own Acts of Parliament permitting it.

Law Commission proposals would enable any burial ground to reuse graves following consultation with the public and approval by Government.  

Graves can only be considered for reuse when the last burial was made at least 75 years ago and among the points consulted on is whether some other period should apply.

The Law Commission statement said: "The law around burial and cremation is also complicated and out of date. It has evolved over the years, with a patchwork of different laws which apply to different burial grounds depending on who operates them (eg Church of England, local authorities, private owners, etc).

“Some of these laws date back to the mid-19th century and are unsuitable for the modern world. Gaps in the law mean that, for example, there are no rules on the minimum depth at which bodies should be buried in private cemeteries.“

Junior justice minister Alex Davies-Jones said: “The Government is supportive of the Law Commission’s work and would encourage the public to take the time to respond to this consultation paper.” 

Among solutions to the pressures on cemetery space, the commission said new burial grounds can be developed, but this involves costs for operators running into millions of pounds.

Using new land for burials means that it cannot be used for other purposes, including housing where there is pressure for land to develop.

“When each burial plot in a cemetery is only used once, over the course of time the cemetery ceases to serve its original purpose and risks falling into disrepair and becoming a site for anti-social behaviour,” the commission said.

It said an extension of grave reuse and reclamation powers was desirable and its proposals would introduce two stages of safeguards.

An operator would have to consult the local community before obtaining reuse and reclamation powers and there would be protections in place before any particular grave could be reused or reclaimed.

Burial ground operators would be required to apply to the Secretary of State with a grave reuse and reclamation plan including results fo surveys of local opinion.

“We acknowledge that these requirements are burdensome and would take time and cost money to comply with,” the consultation paper said.

“They could reduce the extent to which graves are reused. However, the costs involved will be less than the effort and expense of securing a private Act of Parliament, and this approach would provide reassurance to the public.”

At present closure of a burial ground requires an Order in Council, which the commission called “outdated” and proposed transferring this power to the Secretary of State.

When a Church of England churchyard is closed, the parochial church council can transfer responsibility for maintenance to the parish council, which in turn can transfer it to the district council.

It proposed that closed churchyards transferred into local authority maintenance could be reopened still with local authorities maintaining these as .”returning responsibility to the church would reduce the incentive to reopen churchyards”.

The Law Commission said there was a case for a maintenance standard for all burial grounds with the Secretary of State having powers to order an inspection report and to issue a notice requiring action to meet statutory duties.

It said the Secretary of State can direct a local authority to take actions over a burial ground and “we provisionally propose modernising this power, and enabling the local authority to charge back the costs of carrying out those actions to the cemetery owner”.

Mark Smulian